Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 2 contracts
Sources: Services Contract, Services Contract
Escrow. (a) As soon long as reasonably practicable there are Indemnity Escrow Amounts validly held in the Indemnity Escrow Account, any and all Losses payable by any Seller Indemnifying Party pursuant to this Article 10 may be paid out of the Indemnity Escrow Account. Upon the determination that any such payment is due to a Buyer Indemnified Party and the delivery of written notice from the Buyer of its election to recover such amount from the Indemnity Escrow Account, the Buyer and the Seller shall execute and deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to release such amount from the Indemnity Escrow Account to the Buyer.
(b) Promptly following the Commencement date that is twelve (12) months after the Closing Date (the “Release Date”), the Buyer and the Seller shall execute and deliver a joint written instruction to the Escrow Agent directing the Escrow Agent to release any remaining portion of the Indemnity Escrow Amount to the Seller, less any amounts that are subject to pending claims made by any Buyer Indemnified Party under this Article 10 prior to 11:59 p.m. on the Release Date. If any claim made by any Buyer Indemnified Party under this Article 10 is still pending as of the Release Date, the Service Provider shall enter into Escrow Agent, pursuant to the terms of the Escrow Agreement, will retain a standard form portion of the Escrow Amount in an amount equal to the Losses identified in any unresolved notice delivered pursuant to the Escrow Agreement with until such claim has been satisfied or otherwise resolved, at which point Buyer and the Seller shall execute and deliver a reputable Escrow Agent satisfactory joint written instruction to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in directing the Escrow Agreement within ten (10) days of Agent to release to the date Seller any remaining balance of the Escrow Agreement being signed. The Service Provider shall pay Amount not used to satisfy the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related indemnification rights of the Purchaser Buyer Indemnified Party under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Article 10.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Wireless Telecom Group Inc), Membership Interest Purchase Agreement (R F Industries LTD)
Escrow. As soon as reasonably practicable following (a) The Restricted Shareholder hereby authorizes and directs the Commencement DateSecretary of the Company, or such other person designated by the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Company, to transfer the Restricted Shares which are subject to the Purchaser in relation Restrictions from the Restricted Shareholder to the software and/or documentation agreed by Company or the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesEmployer, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsas applicable, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectivelyforfeiture of such shares pursuant to Section 2.1.
(b) To insure the availability for delivery of the Restricted Shares upon forfeiture pursuant to Section 2.1, the bankruptcy or insolvencyRestricted Shareholder hereby appoints the Secretary, or Default any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and transfer unto the Company, such shares, if any, forfeited pursuant to this Agreement and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Transferee; Company, or such other person designated by the Company, the share certificates representing the Restricted Shares, together with the share assignment duly endorsed in blank, attached hereto as Exhibit A. The Restricted Shares and share assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Instructions of the Company and the Transferee Restricted Shareholder attached hereto as Exhibit B, until all of the Restrictions expire or shall only be able have been removed. [??As a further condition to assign, novate or otherwise dispose of its rights the Company's and the Employer's obligations under this Contract or any part thereof with Agreement, the prior consent in writing spouse of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates Restricted Shareholder, if any, shall execute and deliver to the performance Company the Consent of Spouse attached hereto as Exhibit C.??] Upon the lapse of the Service Provider’s obligations under this Contract. In such circumstances Restrictions on the Purchaser Restricted Shares, the escrow agent shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating promptly deliver to the performance Restricted Shareholder the certificate or certificates representing such shares in the escrow agent's possession belonging to the Restricted Shareholder, and the escrow agent shall be discharged of the Service Provider’s all further obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure hereunder; provided, however, that the Transferee gives a confidentiality undertaking in relation escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to such Service Provider Confidential Information. Change of Control other restrictions imposed pursuant to this Agreement.
(c) The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of ControlCompany, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract designee, shall not relieve be liable for any act it may do or omit to do with respect to holding the Service Provider of any obligation or duty attributable to Restricted Shares in escrow and while acting in good faith and in the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions exercise of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇judgment.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 2 contracts
Sources: Restricted Share Agreement (Tanger Factory Outlet Centers Inc), Restricted Share Agreement (Tanger Factory Outlet Centers Inc)
Escrow. As soon security for the Seller’s faithful performance of the terms of this Agreement and to ensure that the Shares will be available for delivery upon exercise of the Repurchase Right as reasonably practicable following the Commencement Dateherein provided, upon issuance, the Service Provider certificates for Shares shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited held in escrow by Union Bank of California N.A. (the “Escrowed MaterialEscrow Agent”) until the earlier of (a) the date on which none of the Shares remain subject to the Repurchase Right and (b) the date on which all of the Shares are repurchased by the Buyer pursuant to Section 3.2 (the “Escrow Period”). The Service Provider Notwithstanding the foregoing, however, if the Student Enrollment at all Qualified Educational Institutions is equal to or greater than two hundred thousand (200,000) on December 31, 2010 and there occurs either (a) an IPO (as such term is defined below) or (b) a Change of Control, then Seller shall be entitled, by notice given to the Escrow Agent and Buyer, to cause the Escrow Agent to release to Seller a number of shares equal to the Student Enrollment at all Qualified Educational Institutions immediately prior to the date of such IPO or the consummation of such Change in Control (the “Post IPO Release Right”). Further, the Seller agrees to deliver and deposit the Escrowed Material with the Escrow Agent on a Stock Assignment duly endorsed (with date and number of shares blank) in the basis of form attached hereto as Exhibit C, together with the terms agreed certificate or certificates evidencing the Shares. The foregoing documents are to be held by the Escrow Agent and delivered by the Escrow Agent in accordance with the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall notform attached hereto as Exhibit D. Any cash, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated other property or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) securities distributed in respect of the obligations specified Shares held in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of escrow and any part of this Contract substituted securities described in Section 3.5 below shall not relieve the Service Provider of any obligation or duty attributable immediately be delivered to the Service Provider under this ContractEscrow Agent to be held in escrow in the same manner as such Shares. The Service Provider In the event Buyer shall be responsible repurchase or acquire any Shares subject to the Repurchase Right, (x) the Escrow Agent shall release from escrow and cancel a certificate for the acts number of Shares (or substituted securities described in Section 3.5) so repurchased or acquired and omissions of its Sub-contractors as though they are its own. Where (y) the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment Escrow Agent shall release from escrow and (i) return to be Buyer any cash distributions made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services such Shares and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right (ii) cancel any certificates representing distributions of retention or set-off securities made in respect of a breach such Shares. Upon the release to Seller of contract any of the Shares held by the Sub-contractor Escrow Agent, the Escrow Agent shall also release from escrow to Seller all substituted or additional securities and/or other property in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty such Shares described in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Section 3.5 below.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 2 contracts
Sources: Intellectual Property Purchase Agreement, Intellectual Property Purchase Agreement (Higher One Holdings, Inc.)
Escrow. As soon as reasonably practicable following security for the Commencement Datefaithful performance of the terms of this Agreement and to insure the availability for delivery of Purchaser's Shares upon exercise of the Repurchase Option, the Service Provider shall enter into a standard form Purchaser hereby pledges and delivers for deposit with the [Chief Financial Officer] of the Company, or such other person designated by the Company, as escrow agent in this transaction ("Escrow Agreement Agent"), two stock assignments duly endorsed (with a reputable date and number of shares blank) together with the certificate or certificates evidencing the Shares. Such documents are to be held by the Escrow Agent satisfactory and delivered by the Escrow Agent pursuant to the following instructions of the Company and the Purchaser:
(a) In the event the Company and/or any assignee of the Company exercises the Repurchase Option, Purchaser and the Company hereby irrevocably authorize and direct the Escrow Agent to execute the transaction contemplated by notice of repurchase in relation accordance with the terms of such notice.
(b) In connection with such transaction the Escrow Agent is directed (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares to be transferred, to the software and/or documentation agreed by Company against the Parties that is delivery of the purchase price for the number of shares of stock being purchased pursuant to be deposited in escrow the exercise of the Repurchase Option.
(c) Purchaser irrevocably authorizes the “Escrowed Material”). The Service Provider shall Company to deposit the Escrowed Material with the Escrow Agent on any certificates evidencing the basis Shares to be held by the Escrow Agent hereunder and any additions and substitutions to said shares as defined herein. Purchaser irrevocably constitutes and appoints the Escrow Agent as his attorney-in-fact and agent for the term of this escrow to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated.
(d) Upon written request of the terms agreed in Purchaser, but no more than once per calendar year, unless the Repurchase Option has been exercised, the Escrow Agreement within ten (10) days Agent will deliver to Purchaser a certificate or certificates representing so many of the date Shares as are not then subject to the Repurchase Option. Within 180 days after cessation of Purchaser's continuous employment by the Company, or any parent or subsidiary of the Company, the Escrow Agent will deliver to Purchaser a certificate or certificates representing the aggregate number of Shares sold pursuant to this Agreement and not repurchased by the Company or its assignees pursuant to exercise of the Repurchase Option.
(e) If at the time of termination of this escrow the Escrow Agent has in his possession any documents, securities, or other property belonging to Purchaser, the Escrow Agent shall deliver such property to Purchaser and be discharged of all further obligations hereunder.
(f) The responsibilities of the Escrow Agreement being signedAgent hereunder shall terminate if he shall cease to be Chief Financial Officer of the Company or if he shall resign by written notice to each party. The Service Provider shall pay In the initial storage feesevent of any such termination or resignation, the annual fees and update fees under the Company shall appoint a successor Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordinglyAgent. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6appointment, the Purchaser may assignPresident of the Company shall be the Escrow Agent.
(g) It is understood and agreed that should any dispute arise with respect to the delivery, novate ownership, or otherwise dispose right of its rights and obligations under this Contract possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part thereof to: any Government Body; of said Shares until such disputes shall have been settled either by mutual written agreement or any other body established by the Crown a final order, decree, or under statute in order substantially to perform any judgment of the functions that had previously arbitrator, if applicable, or of a court of competent jurisdiction after the time for appeal has expired and no appeal has been performed by perfected, but the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Escrow Agent shall be available under no duty whatsoever to the Service Provider in the event of respectivelyinstitute or defend such proceedings.
(h) By signing this Agreement, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information Escrow Agent becomes a party hereto only for purposes relating to the performance purpose of executing the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that instructions set out forth in this clause 41.3 (including Section 7 and does not otherwise become a party to this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeAgreement.
Appears in 2 contracts
Sources: Restricted Stock Purchase Agreement (Log Point Technologies Inc), Restricted Stock Purchase Agreement (Log Point Technologies Inc)
Escrow. As soon as reasonably practicable following (a) Concurrently with the Commencement Dateexecution of this Agreement, the Service Provider parties shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in establish an escrow account (the “Escrowed MaterialEscrow Account”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed ) pursuant to an escrow agreement substantially in the form attached hereto as Exhibit B (the “Escrow Agreement within ten (10Agreement”) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesby and among Seller, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsCompany, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇ Capital Partners, LLC (“RCP”) and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ Fargo Bank, N.A. (the “Escrow Agent”).▇▇▇
(b) Upon the execution of this Agreement:
(i) Seller will deposit into the Escrow Account this Agreement and the Escrow Agreement, each duly and validly executed by Seller.▇▇
(ii) Each Purchaser will deposit into the Escrow Account:
(A) this Agreement, the Registration Rights Agreement, the Notice of Registration Statement and awarded following a fair, open, transparent and competitive process proportionate Selling Securityholder Questionnaire substantially in the form of Exhibit A attached to the nature Registration Rights Agreement and value the Escrow Agreement, each duly and validly executed by such Purchaser; and
(B) each Purchaser’s Investment Amount for the Seller Shares set forth on the signature page of this Agreement executed by such Purchaser; and
(iii) The Company will deposit into the Escrow Account this Agreement, the Registration Rights Agreement and the Escrow Agreement, each duly and validly executed by the Company.
(c) Upon the execution of this Agreement, Seller will deliver to the Company’s transfer agent (the “Transfer Agent”) certificates representing the Seller Shares it will be selling to each Purchaser at the Closing, together with such other documents (including applicable conversion and exercise notices, which may be made contingent on the closing of the contract; includes provisions requiring transactions contemplated hereby) as the conduct Company and the Transfer Agent may require to effect the transfer of audits; such shares to the name of the Purchasers, including executed stock powers with signatures guaranteed by a national bank or member firm of the New York Stock Exchange and is directions for the Transfer Agent to effect such transfer. Subject to Section 1.3(a) below, the Company will instruct the Transfer Agent to issue new Certificates (as defined below) representing the shares to be purchased by each Purchaser and registered in the same terms as that set out in this clause 41.3 name of each such Purchaser, and the Company will instruct the Transfer Agent to (including this clause 41.3.5 subject only to modification to refer i) deliver such Certificates to the correct designation of Escrow Agent, who will release such Certificates to the equivalent party as Purchasers at the Service Provider and Sub-contractor as Closing in accordance with the case may be. The Service Provider shall also include in every Sub-contract: a right Escrow Agreement, or (ii) otherwise make arrangements acceptable to each Purchaser for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance delivery of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider such Certificates to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangePurchasers.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Levine Leichtman Capital Partners Ii Lp)
Escrow. As soon as reasonably practicable following 4.1 For the Commencement Datepurpose of the transactions contemplated in this Agreement, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Parties agree to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in appoint JunZeJun Law Offices, as third party escrow agent (the “Escrowed MaterialEscrow Agent”)) and an Escrow Services Agreement will be signed simultaneously with the execution of this Agreement in a form and substance as set forth in Exhibit 4.1. The Service Provider Escrow Services Agreement shall deposit include a provision stating that (i) in the Escrowed Material with event Chengshan exercises the Chengshan Call Option, the Escrow Agent on the basis shall insert a number that is equal to 65% of the terms agreed Option Price into the blank space in the Escrow Agreement within ten (10) days definition of the date Purchase Price under Section 1.2 of the Escrow Chengshan Equity Transfer Agreement being signed. The Service Provider as the Purchase Price, and shall pay fill in the initial storage feesdates of the Chengshan Equity Transfer Agreement, and the annual fees executed board resolutions and update fees under shareholder resolutions included in the Transaction Documents for Chengshan Group’s Purchase, and (ii) in the event Chengshan exercises the Chengshan Put Option or Cooper exercises the Cooper Option, then the Escrow Agent shall insert a number that is equal to 35% of the Option Price into the blank space in the definition of the Purchase Price under Section 1.2 of the Cooper Equity Transfer Agreement as the Purchase Price and shall fill in the dates of the Cooper Equity Transfer Agreement, and the Purchaser executed board resolutions and shareholder resolutions included in the Transaction Documents for ▇▇▇▇▇▇’▇ Purchase.
4.2 Simultaneously with the signing of this Agreement, Chengshan and Cooper shall pay the release fee. Assignation The Service Provider may not assign any deliver executed copies of its rightsundated Transaction Documents for Chengshan Group’s Purchase, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1Transaction Documents for ▇▇▇▇▇▇’▇ Purchase, the Service Provider may assign to another person Withdraw Documents for Chengshan Group’s Purchase, Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase, Unwinding Documents for Chengshan Group’s Purchase, and Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Dueeach as defined below); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case executed by all the parties thereto, to the Escrow Agent, to be held in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6escrow.
4.2.1 The following documents (collectively, the Purchaser may assign“Transaction Documents for Chengshan Group’s Purchase”) will be placed into escrow and released in accordance with Article 4.3.1 below:
(a) an agreement, novate or otherwise dispose of its rights in form and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to substance as the “TransfereeAgreement for The Transfer of Equity Interest in ▇▇▇▇▇▇ Chengshan (Shandong) Tire Company Limited” attached hereto as Exhibit 4.2.1(a) (the “Chengshan Equity Transfer Agreement”): ) in connection with the rights purchase of ▇▇▇▇▇▇’▇ interest in CCT by Prairie;
(b) a TBR Offtake Agreement between CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(b);
(c) a PCR Offtake Agreement between CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(c);
(d) a termination agreement between CCT and CTB for the Trademark License Agreement dated October 27, 2005 by and among CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(d);
(e) a termination agreement between CCT and CTB for the Technical Assistance and Technology License Agreement dated October 27, 2005 by and among CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(e);
(f) a termination notice from CTBX Company to CCT for the Secondment Agreement dated February 4, 2006 by and among CTBX Company and CCT in the form and substance as set forth in Exhibit 4.2.1(f);
(g) a patent and domain name assignment agreement between CCT and CTB in the form and substance as set forth in Exhibit 4.2.1(g);
(h) a transition service agreement in the form and substance as set forth in Exhibit 4.2.1(h);
(i) the board resolutions by Prairie and the board resolutions by Cooper approving the execution of Chengshan Equity Transfer Agreement; and
(j) a board resolution of CCT approving the transactions contemplating under the Chengshan Equity Transfer Agreement.
4.2.2 The following documents (collectively, the “Transaction Documents for ▇▇▇▇▇▇’▇ Purchase”) will be placed into escrow and released in accordance with Article 4.3.2 below:
(a) an agreement, in form and substance as the “Agreement for The Transfer of Equity Interest in Cooper Chengshan (Shangdong) Tire Company Limited” attached hereto as Exhibit 4.2.2(a) (the “Cooper Equity Transfer Agreement”, and, together with the Chengshan Equity Transfer Agreement, the “Equity Transfer Agreement”) in connection with the purchase of Chengshan’s interest in CCT by Cooper,
(b) a transition services agreement in the form and substance as set forth in Exhibit 4.2.2(b);
(c) a patent assignment agreement between CCT and Chengshan in the form and substance as set forth in Exhibit 4.2.2(c);
(d) a termination agreement in the form and substance as set forth in Exhibit 4.2.2(d);
(e) the shareholders’ meeting resolutions by Chengshan and the board resolutions by Cooper approving the execution of Cooper Equity Transfer Agreement; and
(f) a board resolution of CCT approving the transactions contemplating under the Cooper Equity Transfer Agreement.
4.2.3 The following documents (the “Withdraw Documents for Chengshan Group’s Purchase”) will be placed into escrow and released in accordance with Article 4.4:
(a) a Petition for Withdrawing the Application in the form and substance as set forth in Exhibit 4.2.3(a).
4.2.4 The following documents (the “Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase”) will be placed into escrow and released in accordance with this Article 4.5:
(a) a Petition for Withdrawing the Application in the form and substance as set forth in Exhibit 4.2.4(a).
4.2.5 The following documents (the “Unwinding Documents for Chengshan Group’s Purchase”) will be placed into escrow and released in accordance with Article 4.6:
(a) an Application for Unwinding of the Purchaser Approval in clauses 64 the form and substance as set forth in Exhibit 4.2.5(a).
4.2.6 The following documents (Termination Rightsthe “Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase”) will be placed into escrow and released in accordance with Article 4.7:
(a) an Application for Unwinding of the Approval in the form and substance as set forth in Exhibit 4.2.6(a).
4.3 Upon the receipt by the Escrow Agent of either Chengshan’s Exercise Notice or ▇▇▇▇▇▇’▇ Exercise Notice, the Escrow Agent shall immediately release to the Parties original copies of the following documents:
4.3.1 if Chengshan exercises Chengshan’s Call Option, the Chengshan Equity Transfer Agreement (i.e., Article 4.2.1(a)) and 65 the executed board resolutions included in the Transaction Documents for Chengshan Group’s Purchase (Termination on Insolvency i.e., Article 4.2.1(i) and 4.2.1(j)); or
4.3.2 if Chengshan exercises Chengshan’s Put Option or Change ▇▇▇▇▇▇ exercises ▇▇▇▇▇▇’▇ Option, the ▇▇▇▇▇▇ Equity Transfer Agreement (i.e., Article 4.2.2(a)) and the executed board resolutions and shareholder resolutions included in the Transaction Documents for ▇▇▇▇▇▇’▇ Purchase (i.e., Article 4.2.2 (e) and 4.2.2 (f)).
4.4 Upon the receipt by the Escrow Agent of Controlthe ▇▇▇▇▇▇ Withdraw Notice (as defined below), the Escrow Agent shall immediately release to Cooper original copies of the Withdraw Documents for Chengshan Group’s Purchase set out in Article 4.2.3.
4.5 Upon receipt by the Escrow Agent of the Chengshan Group Withdraw Notice (as defined below), the Escrow Agent shall immediately release to Chengshan original copies of the Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase set forth in Section 4.2.4.
4.6 Upon receipt by the Escrow Agent of the ▇▇▇▇▇▇ Unwinding Notice (as defined below), the Escrow Agent shall immediately release to Cooper original copies of the Unwinding Documents for Chengshan Group’s Purchase set forth in Section 4.2.5.
4.7 Upon receipt by the Escrow Agent of the Chengshan Group Unwinding Notice(as defined below), the Escrow Agent shall immediately release to Chengshan original copies of the Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase set forth in Section 4.2.6.
4.8 The Party that is purchasing the other Party’s equity interest in CCT shall provide such other Party and the Escrow Agent written notice indicating that the conditions for Closing (as defined in the applicable Equity Transfer Agreement) shall set forth in Article 2 of the applicable Equity Transfer Agreement have been satisfied (other than those conditions that by their nature are to be available satisfied at the Closing (as defined in the applicable Equity Transfer Agreement), but subject to the Service Provider fulfillment or waiver of those conditions), within 5 business days (which shall not be subject to the Cure Period) of the satisfaction of such conditions. Such notice shall include a copy of CCT’s newly issued business license reflecting the transfer of equity. Upon the receipt of such written notice, the Escrow Agent shall release simultaneously with the closing of the equity transfer transaction contemplated in the applicable Equity Transfer Agreement the original copies of all the remaining documents from either the Transaction Documents for Chengshan Group’s Purchase, in the event of respectively, that Prairie is the bankruptcy or insolvencypurchaser, or Default of the Transferee; and Transaction Documents for ▇▇▇▇▇▇’▇ Purchase, in the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with event that ▇▇▇▇▇▇ is the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services thenpurchaser, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser Chengshan and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇▇▇▇.
4.9 Upon the earliest of (a) both Chengshan and ▇▇▇▇▇▇ failing to properly exercise Chengshan’s Option or ▇▇▇▇▇▇’▇ Option, as applicable, before all such Options expire pursuant to the terms of this Agreement, (b) written notice from ▇▇▇▇▇▇ or Chengshan if the Option Commencement Date has not occurred on or before the Option Commencement Deadline, (c) written instructions from ▇▇▇▇▇▇ and Chengshan, (d) 10 calendar days after release by the Escrow Agent of the documents in Article 4.8, or (e) the termination of this Option Agreement in accordance with Article 6, the Escrow Agent shall destroy all other remaining Transaction Documents for Chengshan Group’s Purchase, Transaction Documents for ▇▇▇▇▇▇’▇ Purchase, Withdraw Documents for Chengshan Group’s Purchase, Withdraw Documents for ▇▇▇▇▇▇’▇ Purchase, Unwinding Documents for Chengshan Group’s Purchase, and Unwinding Documents for ▇▇▇▇▇▇’▇ Purchase which have not been previously released.
4.10 For the purpose of this Article 4, the release of the documents by the Escrow Agent to ▇▇▇▇▇▇ or Chengshan shall be delivered to the following addresses, or to such other address as may be hereafter designated in writing on seven (7) days’ notice by the relevant Party: CHENGSHAN Address: ▇▇. ▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRC Tel: ▇▇▇▇-▇▇▇▇▇▇▇ Fax: ▇▇▇▇-▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Address: ▇/▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ World Office 1, ▇▇.▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇.▇▇, ▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub. Tel: ▇▇▇▇-contractor as the case may be. The Service Provider shall also include in every Sub▇▇▇▇▇▇▇▇ Fax: ▇▇▇▇-contract▇▇▇▇▇▇▇▇ Attn: a right for the Service Provider to terminate that SubPartner-contract if the relevant Subin-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeCharge
Appears in 2 contracts
Sources: Option Agreement, Option Agreement (Cooper Tire & Rubber Co)
Escrow. As soon (a) Concurrently with the execution and delivery of this Agreement, Parent and the Company have entered into an escrow agreement, in the form attached hereto as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow Exhibit F (the “Escrowed MaterialEscrow Agreement”). The Service Provider , with Wilmington Trust, National Association, as escrow agent (the “Escrow Agent”), pursuant to which, among other things, Parent shall (i) concurrently with the execution and delivery of this Agreement, deposit the Escrowed Material with an amount in cash equal to $10,000,000 into a segregated escrow account established by the Escrow Agent (the “Escrow Account”) and (ii) subsequent to the execution and delivery of this Agreement, deposit amounts in cash into the Escrow Account such that, on or before 5:00 p.m. Central Time on January 23, 2024, the basis of the terms agreed aggregate funds contained in the Escrow Agreement within ten Account as of such time is equal to $20,000,000 (10) days of the date of the “Full Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums DueFunding”); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable case, for the Purchaser to redirect payments or invoices accordingly. In the absence purpose of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Providerfunding Parent’s obligations under this Contract. Any change Agreement, including Section 8.3(b)(iv).
(b) Distributions of funds contained in the legal status Escrow Account (the “Escrow Funds”) shall occur as follows:
(i) if the Effective Time occurs and the transactions contemplated hereby are consummated in accordance with the terms hereof, Parent and the Company shall deliver join written instructions to the Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of the Purchaser Escrow Funds, by wire transfer of immediately available funds to the account(s) designated in such that it ceases instructions, to the Paying Agent for the inclusion of such Escrow Funds in the Payment Fund (and, for the avoidance of doubt, the Escrow Funds will be deemed to be a Government Body part of the Payment Fund upon receipt by the Paying Agent);
(ii) if this Agreement is terminated in accordance with the terms hereof the Company is entitled to receive the Closing Failure Fee in accordance with Section 8.3(b)(iv), then the Company and Parent shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure deliver joint written instructions to the benefit Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of any successor body the Escrow Funds, by wire transfer of immediately available funds to the Purchaser. If the rights and obligations under this Contract are assignedaccount(s) designated in such instructions, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider Company in the event satisfaction of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service ProviderParent’s obligations under Section 8.3(b)(iv); and
(iii) if this Contract. In such circumstances Agreement is terminated in accordance with the Purchaser terms hereof and the Company is not entitled to receive the Closing Failure Fee in accordance with Section 8.3(b)(iv), then the Company and Parent shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating deliver joint written instructions to the performance Escrow Agent instructing the Escrow Agent to distribute from the Escrow Account all of the Service Provider’s obligations under this Contract and for no other purpose and Escrow Funds, by wire transfer of immediately available funds to the account(s) designated in such instructions, to Parent (or its designee).
(c) The Escrow Funds shall take all reasonable steps to ensure that be held by the Transferee gives a confidentiality undertaking Escrow Agent in relation to such Service Provider Confidential Informationaccordance with the Escrow Agreement. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment Distributions of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider Escrow Funds shall be responsible for the acts and omissions of its Sub-contractors made as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider provided in respect of Services this Section 8.4 and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Escrow Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 2 contracts
Sources: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Escrow. As soon as reasonably practicable following security for a Participant’s faithful performance of the Commencement Dateprovisions of this Agreement, the Service Provider participant agrees that the stock certificate(s) evidencing the Restricted Shares shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory be delivered to the Purchaser in relation Escrow Holder, who is hereby appointed to the software and/or documentation agreed by the Parties that is to be deposited hold such stock certificate(s) in escrow and to take all such actions and to effectuate all such transfers and/or releases of such Restricted Shares as are in accordance with the terms of this Agreement. The Escrow Holder will act solely for the Corporation as its agent and not as a fiduciary. The Participant and the Corporation agree that the Escrow Holder will not be liable to either (or to any other party) for any actions or omissions unless the “Escrowed Material”Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of the Escrow Holder under this subsection (c). The Service Provider shall deposit the Escrowed Material Escrow Holder may rely upon any letter, notice or other document executed with the Escrow Agent any signature purported to be genuine and may rely on the basis advice of counsel (which may be counsel for the terms agreed in the Escrow Agreement within ten (10Corporation) days and obey any order of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due court with respect to the Service Provider under transactions contemplated by this Contract subject to: deduction of sums in respect of which Agreement. In the Purchaser event that the Corporation exercises its right of recovery under clause 12 (Recovery of Sums Due); and all to repurchase Restricted Shares held by the related rights Escrow Holder, then upon payment by the Corporation of the Purchaser Consideration for such Restricted Shares, the Escrow Holder shall deliver to the Corporation the stock certificate(s) evidencing those Restricted Shares. The Escrow Holder is empowered to act as the Participant’s attorney-in-fact to make such endorsements and execute such stock powers as may be necessary to effect the repurchase contemplated under this Contract in relation Section. The Escrow Holder will release from escrow, and deliver to the recovery of sums due but unpaid. The Service Provider must notify or ensure Participant, only those stock certificates that any Assignee notifies evidence the Purchaser of any variations to the arrangements Restricted Shares for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends Corporation’s right to procurerepurchase, and which the Sub-contractor as described in subsection (b) above, has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇expired.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 2 contracts
Sources: Executive Employment Agreement (Iptimize, Inc.), Executive Employment Agreement (Iptimize, Inc.)
Escrow. As soon as reasonably practicable following security for the Commencement Datefaithful performance of the terms of this Agreement and to insure the availability for delivery of unvested Shares upon exercise of the Repurchase Option, the Service Provider shall enter into a standard form Purchaser hereby pledges and delivers for deposit with the Secretary of the Company, or such other person designated by the Company, as escrow agent in this transaction ("Escrow Agreement Agent"), two stock assignments duly endorsed (with a reputable date and number of shares blank) together with the certificates evidencing the Shares. Such documents are to be held by the Escrow Agent satisfactory and delivered by the Escrow Agent pursuant to the following instructions of the Company and the Purchaser:
(a) In the event the Company and/or any assignee of the Company exercises the Repurchase Option, Purchaser and the Company hereby irrevocably authorize and direct the Escrow Agent to execute the transaction contemplated by the notice of repurchase in relation accordance with the terms of such notice.
(b) In connection with such transaction, the Escrow Agent is directed (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares to be transferred, to the software and/or documentation agreed by Company against the Parties that is delivery of the purchase price for the number of shares of stock being purchased pursuant to be deposited in escrow the exercise of the Repurchase Option.
(c) Purchaser irrevocably authorizes the “Escrowed Material”). The Service Provider shall Company to deposit the Escrowed Material with the Escrow Agent on any certificates evidencing the basis Shares to be held by the Escrow Agent hereunder and any additions and substitutions to said shares as defined herein. Purchaser irrevocably constitutes and appoints the Escrow Agent as his attorney-in-fact and agent for the term of this escrow to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated.
(d) Upon written request of the terms agreed in Purchaser, but no more than once per calendar year, unless the Repurchase Option has been exercised, the Escrow Agreement within ten (10) days Agent will deliver to the Purchaser a certificate or certificates representing so many of the date Shares as are not then subject to the Repurchase Option. Within 180 days after Purchaser is no longer employed by the Company or any parent or subsidiary of the Company, the Escrow Agent will deliver to Purchaser a certificate or certificates representing the aggregate number of Shares sold pursuant to this Agreement and not repurchased by the Company or its assignees pursuant to exercise of the Repurchase Option.
(e) If at the time of termination of this escrow, the Escrow Agent has in his possession any documents, securities, or other property belonging to the Purchaser, the Escrow Agent shall deliver such property to the Purchaser and be discharged of all further obligations hereunder.
(f) The responsibilities of the Escrow Agreement being signedAgent hereunder shall terminate if he shall cease to be Secretary of the Company or if he shall resign by written notice to each party. The Service Provider shall pay In the initial storage feesevent of any such termination, the annual fees and update fees under the Company shall appoint a successor Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordinglyAgent. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6appointment, the Purchaser may assignPresident of the Company shall be the Escrow Agent.
(g) It is understood and agreed that should any dispute arise with respect to the delivery, novate ownership, or otherwise dispose right of its rights and obligations under this Contract possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part thereof to: any Government Body; of said Shares until such disputes shall have been settled either by mutual written agreement or any other body established by the Crown a final order, decree, or under statute in order substantially to perform any judgment of the functions that had previously arbitrator, if applicable, or of a court of competent jurisdiction after the time for appeal has expired and no appeal has been performed by perfected, but the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Escrow Agent shall be available under no duty whatsoever to the Service Provider in the event of respectivelyinstitute or defend such proceedings.
(h) By signing this Agreement, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information Escrow Agent becomes a party hereto only for purposes relating to the performance purpose of executing the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that instructions set out forth in this clause 41.3 (including Section 8 and does not otherwise become a party to this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeAgreement.
Appears in 1 contract
Sources: Founders Restricted Stock Purchase Agreement (Turnstone Systems Inc)
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in 9.1 Closing The escrow (the “Escrowed MaterialEscrow”) for the consummation of this transaction shall be established with Escrow Holder at the address indicated in Section 15.1 hereof by the deposit of an original signed copy of this Agreement with Escrow Holder contemporaneously with the execution hereof. This Agreement shall constitute both an agreement among Buyer and Seller and escrow instructions for Escrow Holder. If Escrow Holder requires separate or additional escrow instructions which it deems necessary for its protection, Seller and Buyer hereby agree promptly upon request by Escrow Holder to execute and deliver to Escrow Holder such separate or additional escrow instructions (the “Additional Instructions”). In the event of any conflict or inconsistency between this Agreement and the Additional Instructions, this Agreement shall prevail and govern, and the Additional Instructions shall so provide. The Service Provider Additional Instructions shall deposit not modify or amend the Escrowed Material with provisions of this Agreement unless otherwise agreed to in writing by Seller and Buyer. On the Closing Date, provided that the conditions set forth in Sections 7.1 and 7.2 hereof have been satisfied or waived, Escrow Agent on Holder shall take the basis of the terms agreed following actions in the order indicated below:
(a) With respect to all closing documents delivered to Escrow Agreement within ten (10) days Holder hereunder, and to the extent necessary, Escrow Holder is authorized to insert into all blanks requiring the insertion of dates the date of the recordation of the Deed or such other date as Escrow Agreement being signed. The Service Provider shall pay Holder may be instructed in writing by Seller and Buyer;
(b) Record the initial storage feesDeed in the official records of Orange County, California;
(c) Deliver to Seller, in cash or current funds, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsPurchase Price, obligations plus or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1minus, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include , the amounts determined in every Sub-contract: accordance with the provisions of Section 10 hereof and as shown on the Closing Statement, Buyer’s original signed counterpart of the Assignment of Contracts and ▇▇▇▇ of Sale and General Assignment, and conformed copies of the recorded Deed;
(d) Deliver to Buyer those items referred to in Section 6.1 hereof and a right conformed copy of the recorded Deed;
(e) Cause the Title Company to issue the Title Policy for the Service Provider Real Property in accordance with the provisions of Section 4.2.3 hereof; and
(f) Deliver to terminate that Sub-contract if the relevant Sub-contractor fails Seller and Buyer a final closing statement which has been certified by Escrow Holder to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; be true and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changecorrect.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Banc of California, Inc.)
Escrow. As soon Unless Purchaser is a Section 2.1(c)(iii) Purchaser, concurrent with the signing hereof, (i) each Purchaser has (A) deposited the Subscription Amount with American Stock Transfer & Trust Company, LLC, as reasonably practicable following the Commencement DateEscrow Agent (“AST” and, collectively with any Custodians, the Service Provider shall enter into a standard form “Escrow Agent”), pursuant to that certain Escrow Agreement (in the form attached hereto as Exhibit H) between the Company and AST (as it may be amended or otherwise modified from time to time, the “AST Escrow Agreement”, and collectively with any Custodian Agreements, the “Escrow Agreement”) or (B) segregated cash equal to the Subscription Amount in an account with a reputable Escrow Agent satisfactory custodian (a “Custodian”) of funds held on behalf of an “investment company” under the Investment Company Act of 1940, as amended, pursuant to binding escrow instructions (“Custodian Agreements”) for release of such funds by such Custodian to the Purchaser Company, at the direction of the Company, upon the satisfaction of conditions set forth in relation the AST Escrow Agreement, and (ii) the Company has issued instructions to the software and/or documentation agreed by Transfer Agent authorizing the Parties issuance, in book-entry form, of the number of Common Shares specified on such Purchaser’s signature page hereto (or, if the Company and such Purchaser shall have agreed, as indicated on such Purchaser’s signature page hereto, that is such Purchaser will receive Common Shares in certificated form, then the Company shall instead instruct the Transfer Agent to be deposited issue such specified Common Shares in escrow certificated form (the “Escrowed MaterialStock Certificates”). The Service Provider shall deposit , or as otherwise set forth on the Escrowed Material Stock Certificate Questionnaire included as Exhibit B-2 hereto) concurrent with the Escrow Agent on the basis Agent’s release of the terms agreed in Subscription Amount to the Company pursuant to the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following 23.1 Escrow Agent shall hold the Commencement DateDownpayment, the Service Provider together with all interest earned thereon, in its interest bearing escrow account (provided that Seller and Purchaser shall enter into a standard form each provide Escrow Agreement Agent with a reputable W-9 form and an Order to Invest), or the Downpayment LC, as the case may be in accordance with the following:
23.1.1 Escrow Agent satisfactory to shall hold the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material Downpayment, together with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or all interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoicesearned thereon, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6Escrow Agent’s escrow account at JP Morgan Chase, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose N.A. and shall take all reasonable steps cause the Downpayment to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Controlearn interest at JP Morgan Chase, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractorN.A.’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.then prevailing insure▇ ▇▇▇▇▇ ▇a▇▇▇▇ rates on trust account deposits of similar size. Escrow Age▇▇ ▇▇▇▇▇ have no liability for any fluctuations in the interest rate paid by JP Morgan Chase on the Downpayment, and is not a guarantor thereof.
23.1.2 If Escrow Agent receives a wri▇▇▇▇ ▇▇▇▇c▇ ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) ned by both Seller and awarded following a fairPurchaser stating that the Closing has occurred and that Seller is entitled to receive the Downpayment or Purchaser is entitled to receive the Downpayment LC, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor case may be, Escrow Agent shall deliver the Downpayment, together with the interest earned thereon to Seller or the Downpayment LC to Purchaser, as the case may be. The Service Provider If Escrow Agent receives a written notice signed by both Seller and Purchaser that this Agreement has been terminated or canceled, Escrow Agent shall also include in every Subdeliver the Downpayment, together with the interest thereon or the Downpayment LC as directed therein.
23.1.3 If Escrow Agent receives a written request signed by Purchaser or Seller (the “Noticing Party”) stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to the Downpayment or the Downpayment LC, as the case may be, or that the other party hereto (the “Non-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply Noticing Party”) has defaulted in the performance of its contract obligations hereunder, Escrow Agent shall mail (by certified mail, return receipt requested) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Downpayment or the Downpayment LC, as the case may be, by written notice of objection delivered to and received by Escrow Agent ten (10) Business Days after the date of Escrow Agent’s mailing of such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a written notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Downpayment, together with legal obligations in the fields interest earned thereon or the Downpayment LC, as the case may be, to the Noticing Party. If Escrow Agent shall have received a written notice of environmentalobjection within the time herein prescribed, social Escrow Agent shall refuse to comply with any requests or employment law demands on it and shall continue to hold the Downpayment, together with any interest earned thereon or if any the Downpayment LC, as the case may be, until Escrow Agent receives either (a) a written notice signed by both Seller and Purchaser stating who is entitled to the Downpayment (and interest) or the Downpayment LC, as the case may be, or (b) a final order of a court of competent jurisdiction directing disbursement of the termination Downpayment (and interest) or the Downpayment LC, as the case may be, in a specific manner, in either of which events specified Escrow Agent shall then disburse the Downpayment, together with the interest earned thereon or deliver the Downpayment LC, as the case may be, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in clause 64.3 (Termination Rightsa) occur; or (b) above.
23.2 Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the notices from Escrow Agent to Seller and/or Purchaser, or from Seller and/or Purchaser to Escrow Agent, provided for in this Section 23 shall be addressed to the party to receive such notice at its notice address set forth in Section 14 above (with copies to be similarly sent to the additional persons therein indicated), but the provisions of Section 14 relating to the manner of giving notices and the effective dates thereof shall have no application to the provisions of this Section 23.
23.3 Notwithstanding the foregoing, if Escrow Agent shall have received a written notice of objection as provided for in Section 23.1.3 above within the time therein prescribed, or shall have received at any time before actual disbursement of the Downpayment or delivery of the Downpayment LC, as applicable, a written notice signed by either Seller or Purchaser disputing entitlement to the Downpayment or the Downpayment LC, as applicable or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the Downpayment or the Downpayment LC, as applicable (whether or not litigation has been instituted), Escrow Agent shall have the right, upon written notice to both Seller and Purchaser, (a) to deposit the Downpayment, together with the interest earned thereon, or the Downpayment LC, as applicable, with the Clerk of the Court in which any litigation is pending and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Downpayment, together with the interest earned thereon, or the Downpayment LC, as applicable, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
23.4 Escrow Agent is acting hereunder without charge as an accommodation to Purchaser and Seller, it being understood and agreed that Escrow Agent shall not be liable for any error in judgment or any act done or omitted by it in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention party has been authorized to do so in at least one trade journal so. Escrow Agent shall not be liable for, and Purchaser and Seller hereby jointly and severally agree to indemnify Escrow Agent against, any loss, liability or expense, including reasonable attorney’s fees (paid to retained attorneys) arising out of any dispute under this Agreement, including the Public Contracts Scotland Portal; cost and follow a procedure leading to the selection expense of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changedefending itself against any claim arising hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Mack Cali Realty Corp)
Escrow. As soon security for the faithful performance of the terms of this Agreement and to insure the availability for delivery of Nonvested Shares upon the Event of Resale, Holder hereby pledges and delivers for deposit with the Secretary of M Corp., or such other person designated by M Corp., as reasonably practicable escrow agent in this transaction ("Escrow Agent"), two stock assignments duly endorsed (with date and number of shares blank) together with the certificates evidencing the Shares. Such documents are to be held by the Escrow Agent and delivered by the Escrow Agent pursuant to the following instructions of M Corp. and Holder:
(a) Upon the Commencement Dateoccurrence of the Event of Resale, Holder and M Corp. hereby irrevocably authorize and direct the Escrow Agent to consummate the repurchase of the Nonvested Shares in accordance with this Agreement.
(b) In connection with the Event of Resale, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory is directed (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares to be transferred, to M Corp. against the delivery of the purchase price for the number of Nonvested Shares being purchased pursuant to the Purchaser in relation Event of Resale.
(c) Holder irrevocably authorizes M Corp. to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on any certificates evidencing the basis of the terms agreed in Restricted Shares to be held by the Escrow Agreement within ten (10) days of the date of Agent hereunder and any additions and substitutions to said shares as defined herein. Holder irrevocably constitutes and appoints the Escrow Agreement being signed. The Service Provider shall pay Agent as Holder's attorney-in-fact and agent for the initial storage feesterm of this escrow to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated.
(d) Upon the Vesting Expiration Date or promptly following the written request of Holder (but in no event later than five business days following receipt of such request), the annual fees and update fees under Escrow Agent will deliver to Holder (or the Escrow Agreement and assignee or the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any estate of its rightsHolder, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: ) a right for certificate or certificates representing the Service Provider to terminate that Sub-contract if Vested Shares.
(e) If at the relevant Sub-contractor fails to comply time of termination of this escrow, the Escrow Agent has in the performance Escrow Agent's possession any documents, securities, or other property belonging to Holder, the Escrow Agent shall deliver such property to Holder and be discharged of its contract with legal all further obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changehereunder.
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement Date(a) Upon receipt thereof, the Service Provider Winter Harbor shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser deposit in relation to the software and/or documentation agreed by the Parties that is to be deposited in an interest bearing escrow (the “Escrowed Material”"Escrow") the Purchase Price and those securities issued to Winter Harbor pursuant to the Securities Exchange Agreement (such securities and any additional or other shares or securities or property into which such securities are converted or for which such securities are exchanged including through any reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, or other transaction being the "Issued Securities"). The Service Provider Escrow shall deposit terminate, and the Escrowed Material remaining contents thereof transferred to Winter Harbor, free and clear of any claim, liens, encumbrances by Purchaser or any Purchaser Indemnified Party, upon the first occurrence of an Escrow Termination Event. An Escrow Termination Event shall have occurred upon the earlier of (i) the end of the 540th day after the date of this Agreement, if during such period no Red Cube AG Claim premised upon the Red Cube AG Securities Purchase Agreement has been initiated (other than a claim in connection with the Escrow Agent on mediation currently pending before the basis American Arbitration Association), and (ii) the final resolution or settlement of all claims brought against Winter Harbor or Purchaser before the 540th day after the date of this Agreement that could result in potentially indemnifiable losses related to any Red Cube AG Claim.
(b) Winter Harbor and Purchaser acknowledge that as a result of the terms agreed transaction contemplated by this Agreement, there is a risk that Purchaser or a Purchaser Indemnified Party may be exposed to (i) Losses resulting from a determination and order by a court of competent jurisdiction, arbitral panel or other adjudicatory entity that, pursuant to the Red Cube AG Securities Purchase Agreement, Red Cube AG is entitled to the transfer of ownership from Purchaser of all or substantially all the Covered Securities (a "Specific Performance Claim") or (ii) Losses premised upon the Red Cube AG Securities Purchase Agreement and which arise from a Red Cube AG Claim which is not a Specific Performance Claim (a "Red Cube Damage Claim"). If, prior to the occurrence of an Escrow Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Specific Performance Claim or a claim under Section 6.1(a) above, then Winter Harbor shall, solely out of and up to a maximum of the Issued Securities and Purchase Price deposited in the Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of such Specific Performance Claim or claim under Section 6.1(a) above. If, prior to the occurrence of an Escrow Agreement within Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Red Cube Damage Claim, then Winter Harbor shall, solely out of and up to a maximum of the Issued Securities deposited in the Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of such Red Cube Damage Claim. Winter Harbor's total aggregate liability for all Specific Performance Claims and all claims under Section 6.1(a) above shall not exceed the loss of its right to the Issued Securities and Purchase Price deposited in the Escrow. Winter Harbor's total aggregate liability for all Red Cube Damage Claims shall not exceed the loss of its right to the Issued Securities deposited in the Escrow. -6
(c) All Losses properly due a Purchaser or Purchaser Indemnified Person pursuant to this Section 6.3, Section 6.1 and Section 6.2 (including, without limitation, reimbursement of attorneys' or other professional fees arising out of article VI of this Agreement) shall first be satisfied by transferring to Purchaser or the applicable Purchaser Indemnified Party a number of Issued Securities determined by dividing the applicable Loss by the then current market price (as calculated by the average closing price for I-Link common stock for the most recent ten (10) days upon which such securities traded) of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordinglysuch shares. In the absence event that the total number of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change Issued Securities then deposited in the legal status of Escrow is insufficient to satisfy the Purchaser applicable Losses, and solely where such that it ceases to be Losses arise exclusively and solely from a Government Body shall notRed Cube Specific Performance Claim or from a claim under Section 6.1(a), subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shortfall shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due satisfied by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider transferring to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes or applicable Purchaser Indemnified Person, a portion, up to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection maximum of the Sub-contractor which ensures reasonable competition following principles total Purchase Price, of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changethe cash proceeds then deposited in the Escrow.
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to shall hold the Fund and documents in escrow, dispose of the Fund, pro rate revenues and expenses and deliver documents only in accordance with the following provisions:
(a) Simultaneously with the full execution of this Agreement, Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in and Seller opened an escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "AssigneeEscrow") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, P.A. (the "Escrow Agent"), whose address is ▇▇▇ ▇. ▇▇▇▇▇▇▇ Boulevard, Suite 1000, Tampa, FL 33602, by delivering to Escrow Agent the Initial Deposit. Within two days after the full execution of this Agreement, the parties shall deliver to Escrow Agent a fully executed copy of this Agreement. The purchase and sale of the Property shall be completed through the Escrow. This Agreement, together with the standard form provisions of Escrow Agent, which are attached hereto as Schedule "7", shall constitute joint escrow instructions to Escrow Agent in connection with the Escrow. In the event of any inconsistency between the provisions of this Agreement (other than Schedule "7") and the provisions of Schedule "7", the former shall prevail. Purchaser and Seller hereby agree to execute such additional instructions not inconsistent with this Agreement as may be reasonably required by Escrow Agent.
(b) At the Closing, the Escrow Agent shall do the following:
(i) Prorate all matters in accordance with Section 3, above, based on the latest available information and obtain Seller's and Purchaser's approval of those prorations;
(ii) Cause the Deed and the Prudential Lease Memorandum to be recorded;
(iii) Disburse all funds deposited with Escrow Agent by Purchaser in payment of the Purchase Price for the Property as follows:
A. Deduct the amount of items chargeable to the account of Seller pursuant to this Agreement;
B. Disburse to Seller's Broker its commission relating to the sale of the Premises in accordance with a separate agreement, a copy of which was delivered to Escrow Agent and the initial commission relating to the Prudential Lease (but not any commissions owed on the Prudential Lease after the commencement date of the Prudential Lease, which commissions shall be the responsibility of Purchaser);
C. The remaining balance of the funds deposited by Purchaser in the Escrow in payment of the Purchase Price shall be disbursed to Seller pursuant to its demand;
(iv) Deliver to Seller the following documents: Original counterparts of the Bill of Sale, the A&A Agreements, the Prudential Lease, and any other documents executed by Purchaser pursuant to Section 12 hereof.
(v) Deliver or cause to be delivered to Purchaser the marked up Title Commitment referenced in Section 11 above and the following documents: A photostat copy of the Deed and original counterparts of the Bill of Sale, the A&A Agreements, the Prudential Lease, and any other documents executed by Seller pursuant to Section 11 hereof.
(c) The costs incidental to the Closing shall be paid as follows:
(i) Seller shall pay: (A) Fifty percent (50%) of the Documentary Stamps due on the Deed; (B) Fifty percent (50%) of the premium (at promulgated rates) and Fifty percent (50%) of all search fees for the Title Commitment and the owner's title policy issued pursuant thereto; (C) Fifty percent (50%) of the cost of the Survey; (D) the cost of recording the Deed; and (E) Fifty percent (50%) of the sales tax due, if any, on the transfer of the Personal Property.
(ii) Purchaser shall pay: (A) Fifty percent (50%) of the premium (at promulgated rates) and Fifty percent (50%) of all search fees for the Title Commitment and the owner's title policy issued pursuant thereto; (B) Fifty percent (50%) of the cost of the Survey; (C) Fifty percent (50%) of the Documentary Stamps due on the Deed; and (D) Fifty percent (50%) of the sales tax due, if any, on the transfer of the Personal Property.
(iii) Purchaser and Seller shall each pay their own legal fees and other incidental expenses incurred in connection with the transaction contemplated by this Agreement.
(iv) Purchaser shall pay all documentary stamps, intangible taxes, and recording fees on any note, mortgage or document evidencing a security interest executed in connection with placement of debt on the Premises and any lender's title insurance policy ($250.00) and any title insurance endorsements required by lender (at promulgated rates).
(v) Any other costs or expenses in connection with the transaction contemplated by this Agreement shall be apportioned in the manner customary in similar real estate transactions in ▇▇▇▇▇ County, Florida.
(d) Escrow Agent shall deliver the Fund to Seller or Purchaser, as the case may be, as follows:
(i) to Seller, upon completion of the Closing; or
(ii) to Seller, after receipt of Seller's demand in which Seller certifies either that (A) Purchaser failed to pay the Purchase Price at the Closing, (B) Purchaser has otherwise defaulted under this Agreement and did not cure such default after notice as provided in Section 16(b) hereof, or (C) this Agreement has been otherwise terminated or cancelled, and Seller is thereby entitled to receive the Fund; but Escrow Agent shall not honor Seller's demand until more than ten (10) days after Escrow Agent has given a copy of Seller's demand to Purchaser in accordance with Section 20(e)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or
(iii) to Purchaser, after receipt of Purchaser's demand in which Purchaser certifies either that (A) Seller is unable to deliver title to the Premises as required hereby, (B) Seller has otherwise defaulted under this Agreement and did not cure such default after notice as provided in Section 17(c) hereof, or (C) this Agreement has been otherwise terminated or cancelled, and Purchaser is thereby entitled to receive the Fund; but Escrow Agent shall not honor Purchaser's demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser's demand to Seller in accordance with Section 20(e)(i), nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. Upon delivery of the Fund, ▇▇▇▇▇▇▇▇ Agent shall be relieved of all liability hereunder and with respect to the Fund. Escrow Agent shall deliver the Fund, at the election of the party entitled to receive the same, by (i) a good, unendorsed trust account check of Escrow Agent payable to the order of such party, (ii) an unendorsed official bank or cashier's check payable to the order of such party, or (iii) a bank wire transfer of immediately available funds to an account designated by such party.▇▇▇
(i) Upon receipt of a written demand from Seller or Purchaser under Section 20(d)(ii) or (iii), Escrow Agent shall send a copy of such demand to the other party. Within ten (10) days after the date of receiving same, but not thereafter, the other party may object to delivery of the Fund to the party making such demand by giving a notice of objection (a "Notice of Objection") to Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice of Objection to the party who made the demand; and thereafter, in its sole and absolute discretion, Escrow Agent may elect either (A) to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Seller directing the disbursement of the Fund, in which event Escrow Agent shall disburse the Fund in accordance with such agreement; and/or (B) to take any and all actions as Escrow Agent deems necessary or desirable, in its sole and absolute discretion, to discharge and terminate its duties under this Agreement, including, without limitation, depositing the Fund into any court of competent jurisdiction and bringing any action of interpleader or any other proceeding; and/or (C) in the event of any litigation between Seller and Purchaser, to deposit the Fund with the clerk of the court in which such litigation is pending.▇▇
(ii) If Escrow Agent is uncertain for any reason whatsoever as to its duties or rights hereunder (and whether or not Escrow Agent has received any written demand under Section 20(d)(ii) or (iii), or Notice of Objection under Section 20(b)(i)), notwithstanding anything to the contrary herein, Escrow Agent may hold and apply the Fund pursuant to Section 20(e)(i)(A),(B) or (C) and awarded following may decline to take any other action whatsoever. In the event the Fund is deposited in a faircourt by Escrow Agent pursuant to Section 20(e)(i)(B) or (C), openEscrow Agent shall be entitled to rely upon the decision of such court. In the event of any dispute whatsoever among the parties with respect to disposition of the Fund, transparent Purchaser and competitive process proportionate Seller shall pay the attorney's fees and costs incurred by Escrow Agent (which said parties shall share equally, but for which said parties shall be jointly and severally liable) for any litigation in which Escrow Agent is named as, or becomes, a party.
(f) Notwithstanding anything to the nature and value contrary in this Agreement, within one (1) business day after the date of this Agreement, Escrow Agent shall place the Funds in an Approved Investment. The interest, if any, which accrues on such Approved Investment shall be deemed part of the contract; includes provisions requiring the conduct of auditsFund; and Escrow Agent shall dispose of such interest as and with the Fund pursuant to this Agreement. Escrow Agent may not commingle the Fund with any other funds held by Escrow Agent. Escrow Agent may convert the Fund from the Approved Investment into cash or a non-interest-bearing demand account at an Approved Institution as follows:
(i) at any time within three (3) days prior to the Closing Date; or
(ii) if the Closing Date is accelerated or extended, at any time within three (3) days prior to the accelerated or extended Closing Date (PROVIDED, HOWEVER, that Seller and Purchaser shall give Escrow Agent timely notice of any such acceleration or extension and that Escrow Agent may hold the Fund in cash or a non-interest-bearing deposit account if Seller and Purchaser do not give Escrow Agent timely notice of any such adjournment).
(g) As used herein, the term "Approved Investment" means (i) any interest-bearing demand account or money market fund in First Union National Bank of Florida, N. A. branch located in the same terms as that set out City of Tampa or in this clause 41.3 any other institution otherwise approved by both Seller and Purchaser (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider collectively, an "Approved Institution"), or (ii) any other investment approved by both Seller and Sub-contractor as the case may bePurchaser. The Service Provider rate of interest or yield need not be the maximum available and deposits, withdrawals, purchases, reinvestment of any matured investment and sales shall also include be made in every Sub-contract: a right the sole discretion of Escrow Agent, which shall have no liability whatsoever therefor. Discounts earned shall be deemed interest for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changepurpose hereof.
Appears in 1 contract
Escrow. As soon as reasonably practicable following Notwithstanding any provision of this Agreement to the Commencement Datecontrary, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis Closing of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Transaction contemplated hereunder shall be available to the Service Provider completed in the event of respectivelyescrow, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, Esq.▇▇▇.▇▇, acting as escrow agent (the "ESCROW Agent"), and any funds delivered in escrow shall be held and disposed of by the Escrow Agent in accordance with the terms and provisions of a certain escrow agreement by and between the Company, ASAP Subsidiary, Buyer and Escrow Agent, in substantially the form attached hereto as EXHIBIT B (the "ESCROW AGREEMENT"). In furtherance of the foregoing, the following shall apply:
(a) and awarded following a fair, open, transparent and competitive process proportionate In lieu of delivering the Share Purchase Price to the nature and value Company as provided for in Section 1.3, Buyer shall, at or prior to Closing, deliver or cause to be delivered to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the amount of $425,000 representing the Share Purchase Price.
(b) At such time as all of the contractconditions precedent to Closing under Article VII hereof have been satisfied by the respective parties, and no party shall be in breach any term, warranty, representation, covenant or agreement applicable to them, and each party shall have made all deliveries required by each of them under this Agreement, the Company and Buyer shall provide written notice to Escrow Agent directing that the escrow be disposed of in accordance with the Escrow Agreement and the terms of this Agreement; includes provisions requiring provided, however, that the conduct Escrow Agent shall retain $50,000 of audits; the Share Purchase Price in escrow to satisfy any indemnification obligations of Yuan under this Agreement and any indemnification obligations of the ASAP Subsidiary and Yuan under the Indemnity Agreement ("Indemnity Escrow"). On the date six months (6) months following the Closing Date, to the extent that the Indemnity Escrow has not been and is in not the same terms as that set out in subject of an indemnification claim under this clause 41.3 (including this clause 41.3.5 subject only to modification to refer Agreement and the Indemnity Agreement, the Indemnity Escrow shall be released to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract ASAP Subsidiary together with accrued interest thereon, if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changeany.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cyber Merchants Exchange Inc)
Escrow. As soon as reasonably practicable (a) One day following the Commencement Dateexecution and delivery of this Agreement by an Investor, the Service Provider such Investor shall enter into promptly cause a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser wire transfer of immediately available funds (U.S. dollars) in relation to the software and/or documentation agreed by the Parties that is an amount representing such Investor’s Subscription Amount to be deposited in paid to a non-interest bearing escrow account of Escrow, LLC (the “Escrowed MaterialEscrow Agent”) (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). The Service Provider Escrow Agent shall deposit hold the Escrowed Material Escrow Amount in escrow in accordance with Section 3.3(b) below.
(b) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(i) in the case of the termination of this Agreement in accordance with Section 6.3, in which case, if the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date then holds any portion of the Escrow Agreement being signed. The Service Provider Amount, then: (A) the Escrow Agent shall pay return the initial storage feesportion of the Escrow Amount received from each Investor which it then holds, to each such Investor, in accordance with written wire transfer instructions received from such Investor; and (B) if Escrow Agent has not received written wire transfer instructions from any Investor before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Investor in a court of competent jurisdiction on written notice to such Investor, and Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Investor or an order from a court of competent jurisdiction; OR
(ii) in the case of the Closing, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in which case, the annual fees and update fees under Escrow Agent shall release the Escrow Agreement Amount constituting the aggregate purchase price as follows: (A) to the Placement Agent, the fees payable to such Placement Agent, and (B) the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent balance of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the aggregate purchase price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Company.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Securities Purchase Agreement (Mad Catz Interactive Inc)
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Notwithstanding any provision of this Agreement with a reputable Escrow Agent satisfactory to the Purchaser contrary, in relation lieu of delivering to holders of shares of Company Common Stock certificates for the full number of shares of Parent Common Stock provided for in Section 2.7, Parent shall deliver or cause to be delivered (A) to each such holder one or more certificates, registered in the name of such holder (subject to Section 2.8(e)), for a number of shares of Parent Common Stock equal to 90% of the aggregate number of shares of Parent Common Stock otherwise issuable to such holder pursuant to Section 2.7; and (B) to State Street Bank and Trust Company as escrow agent (the "Escrow Agent") for deposit into the escrow fund (the "Escrow Fund") provided for in the escrow agreement in the form attached as Exhibit 2.8 hereto (the "Escrow Agreement"), to secure the indemnity obligations under Section 11.2, one or more certificates, registered in the name of the Escrow Agent, for a number of shares of Parent Common Stock equal to the software and/or documentation agreed Escrow Amount out of the aggregate number of shares of Parent Common Stock otherwise issuable pursuant to Section 2.7 upon conversion of all of the shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, all of which will be held as part of the Escrow Fund and disposed of by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on in accordance with the basis provisions of the terms agreed Escrow Agreement. Such shares shall be beneficially owned by the holders on whose behalf such shares were deposited in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees Fund and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to compensate the Service Provider Parent Indemnitees as provided in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service ProviderArticle 11. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose Escrow Agreement is incorporated herein by reference and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any be considered part of this Contract shall not relieve Agreement. By voting for or failing to dissent from the Service Provider approval of this Agreement, each Company Shareholder automatically and without any obligation further act or duty attributable to the Service Provider under this Contract. The Service Provider deed irrevocably agrees that:
(A) such Company Shareholder accepts and shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due bound by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements terms and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit provisions of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the PurchaserEscrow Agreement; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal and
(B) ▇▇▇.▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇▇ (or his successor as provided in the Escrow Agreement) is appointed Shareholder Representative (the "Shareholder Representative") for purposes of the Escrow Agreement with all rights, powers and awarded following a fair, open, transparent authority provided for in the Escrow Agreement and competitive process proportionate that any action taken by the Shareholder Representative pursuant to the nature Escrow Agreement shall be conclusive, valid, binding and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only enforceable with respect to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that each such procedure is accessible by small and medium enterprises. ChangeCompany Shareholder.
Appears in 1 contract
Sources: Merger Agreement (Atmi Inc)
Escrow. As soon as reasonably practicable following The purchase price for the Commencement Date, sale of the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to notes will be deposited placed in escrow pending completion of the acquisition of oil and gas properties from Plains Exploration & Production Company (the “Escrowed MaterialAcquisition”) and MMR’s raising additional capital in an amount of $500 million from Freeport-McMoRan Copper & Gold Inc. (the “Additional Financing”). Any amounts held in escrow may be invested in certain specific investments as directed by MMR. The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis release of the terms agreed in purchase price for the Escrow Agreement within ten (10) days sale of the date notes from the escrow account to MMR as payment for the notes, and issuance thereof, is conditioned upon the concurrent completion of the Escrow Agreement being signedAcquisition and the Additional Financing. The Service Provider shall pay If (i) the initial storage feesAcquisition and Additional Financing are not consummated on or prior to March 31, 2011, or (ii) MMR provides notice that the Acquisition or Additional Financing will not be consummated, then, in any such case, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsescrow agent will promptly return holders’ funds to them, obligations or interest with a commitment fee in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign an amount equal to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) 4% per annum in respect of the obligations time period during which holders’ funds were held in escrow, which will be funded by a combination of MMR’s separate payment and interest earned on the funds while held and invested in escrow, and MMR will not issue the notes. If the conditions to closing specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract above are satisfied, then (x) the escrow agent will release holders’ funds to other Sub-contractors without the prior written consent MMR concurrently upon MMR’s issuance of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable notes to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure holders that a provision is included which: requires payment to be made of all sums due by the Service Provider placed funds in escrow, (y) MMR will pay to the Sub-contractor within holders a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment commitment fee in an amount equal to the Service Provider 2% per annum in respect of Services the time period during which holders’ funds were held in escrow, which will be funded by a combination of MMR’s separate payment and interest earned on the Sub-contractor’s invoice relates to such Services thenfunds while held and invested in escrow, to that extent, and (z) interest on the invoice must be treated as valid and, provided notes will accrue at the Service Provider is not exercising rate specified opposite “Interest” above from the date on which the notes were originally issued. Registration Rights: MMR will enter into a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract registration rights agreement for the benefit of the Purchaser holders of the notes, pursuant to which it will agree to file a shelf registration statement under the Securities Act of 1933, as amended (the “Securities Act”), relating to the resale of the notes and the shares of common stock issuable upon conversion thereof. MMR will use its commercially reasonable efforts (i) to cause such shelf registration statement to become effective no later than 30 days after the date of original issuance of the notes, and (ii) to keep it effective until such date that should all of the Sub-contractor notes and the MMR common stock issuable upon conversion thereof cease to be outstanding or have either been (x) sold or otherwise transferred pursuant to an effective registration statement or (y) sold pursuant to Rule 144 under circumstances in which any difficulty in securing the timely payment of an invoice, that matter may be referred legend borne by the Sub-contractor notes or common stock relating to restrictions on transferability thereof is removed or such notes or common stock are eligible to be sold by the holders thereof (other than MMR’s affiliates) without restriction pursuant to the Purchaser; requires that all contracts with Sub-contractors and suppliers which volume limitations of Rule 144 under the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Securities Act or any successor rules thereto or otherwise.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Securities Purchase Agreement (McMoran Exploration Co /De/)
Escrow. As soon as reasonably practicable following (a) The Restricted Shareholder hereby authorizes and directs the Commencement DateSecretary of the Company, or such other person designated by the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Company, to transfer the Restricted Shares which are subject to the Purchaser in relation Restrictions from the Restricted Shareholder to the software and/or documentation agreed by Company or the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesEmployer, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsas applicable, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectivelyforfeiture of such shares pursuant to Section 2.1 hereof.
(b) To insure the availability for delivery of the Restricted Shares upon forfeiture pursuant to Section 2.1 hereof, the bankruptcy or insolvencyRestricted Shareholder hereby appoints the Secretary of the Company, or Default any other person designated by the Company as escrow agent, as his or her attorney-in-fact to sell, assign and transfer unto the Company, such shares, if any, forfeited pursuant to this Agreement and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Transferee; Company, or such other person designated by the Company, the share certificates representing the Restricted Shares, together with the share assignment duly endorsed in blank, attached hereto as Exhibit A. The Restricted Shares and share assignment shall be held by the Secretary of the Company in escrow, pursuant to the Joint Escrow Instructions of the Company and the Transferee Restricted Shareholder attached hereto as Exhibit B, until all of the Restrictions expire or shall only have been removed. Upon the lapse of the Restrictions on the Restricted Shares, the escrow agent shall promptly deliver to the Restricted Shareholder the certificate or certificates representing such shares in the escrow agent's possession belonging to the Restricted Shareholder, and the escrow agent shall be able discharged of all further obligations hereunder; provided, however, that the escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to assignother restrictions imposed pursuant to this Agreement.
(c) The Company, novate or otherwise dispose its designee, shall not be liable for any act it may do or omit to do with respect to holding the Restricted Shares in escrow and while acting in good faith and in the exercise of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇judgment.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Restricted Share Agreement (Tanger Properties LTD Partnership /Nc/)
Escrow. As soon as reasonably practicable following (a) The Restricted Shareholder hereby authorizes and directs the Commencement DateSecretary of the Company, or such other person designated by the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Company, to transfer the Restricted Shares which are subject to the Purchaser in relation Restrictions from the Restricted Shareholder to the software and/or documentation agreed by Company or the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesEmployer, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsas applicable, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectivelyforfeiture of such shares pursuant to Section 2.1.
(b) To insure the availability for delivery of the Restricted Shares upon forfeiture pursuant to Section 2.1, the bankruptcy or insolvencyRestricted Shareholder hereby appoints the Secretary, or Default any other person designated by the Company as escrow agent, as its attorney-in-fact to sell, assign and transfer unto the Company, such shares, if any, forfeited pursuant to this Agreement and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the Transferee; Company, or such other person designated by the Company, the share certificates representing the Restricted Shares, together with the share assignment duly endorsed in blank, attached hereto as Exhibit A. The Restricted Shares and share assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Instructions of the Company and the Transferee Restricted Shareholder attached hereto as Exhibit B, until all of the Restrictions expire or shall only have been removed. Upon the lapse of the Restrictions on the Restricted Shares, the escrow agent shall promptly deliver to the Restricted Shareholder the certificate or certificates representing such shares in the escrow agent’s possession belonging to the Restricted Shareholder, and the escrow agent shall be able discharged of all further obligations hereunder; provided, however, that the escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to assignother restrictions imposed pursuant to this Agreement.
(c) The Company, novate or otherwise dispose its designee, shall not be liable for any act it may do or omit to do with respect to holding the Restricted Shares in escrow and while acting in good faith and in the exercise of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇judgment.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Restricted Share Agreement (Tanger Factory Outlet Centers Inc)
Escrow. As soon Vendor agrees to promptly place a copy of the source code for each of the Vendor Products (as reasonably practicable following well as all associated documentation and programmer materials, defect correction code and upgrades) (collectively the Commencement Date"Escrowed Materials") in escrow with a mutually agreed upon escrow agent. The parties shall negotiate in good faith the terms and conditions of the escrow agreement. However, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure parties agree that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify escrow agreement shall include the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 terms:
(Approved Sub-contractorsi) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider Newbridge shall be responsible for the acts payment of the fees of the escrow agent.
(ii) Newbridge shall be entitled to receive a copy of the Escrowed Materials from the escrow agent if:
(1) Vendor breaches any material term of the Reseller Agreement, and omissions fails to remedy such breach within [*] ([*]) days of receiving written notice to do so by Newbridge;
(2) any proceeding in bankruptcy, receivership, liquidation or insolvency is commenced against Vendor or its Sub-contractors as though they are its own. Where property, and the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision same is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor not dismissed within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deductiondays; notifies the Sub-contractor that the Sub-contract forms part of a larger contract or
(3) Vendor makes any assignment for the benefit of its creditors, becomes insolvent, commits any act of bankruptcy, ceases to do business as a going concern, or seeks any arrangement or compromise with its creditors under any statute or otherwise. * CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(iii) Upon release of the Purchaser Escrowed Materials from escrow, Newbridge shall be entitled to use the Escrowed Materials to:
(1) provide maintenance and that should support (including without limitation any necessary correction of errors) to its customers; and
(2) modify the Sub-contractor have any difficulty in securing the timely payment of an invoiceVendor Products, that matter may be referred as required to satisfy functionality commitments made by the Sub-contractor Newbridge to existing or prospective customers prior to the Purchaseroccurrence of the event described in Section 18.12(a)(ii) which triggered the release of the Escrowed Materials, which modifications have been agreed to by Vendor in writing.
(1) the Transfer Price for such product; requires that all contracts with Subor (2) the Average Net Revenue for each Vendor Product manufactured and distributed under this Section 18(iii). For purposes of this Agreement, "Average Net Revenue" shall mean the average price at which Newbridge sells a particular Vendor Product, less any: (i) duties, (ii) sales, value-contractors and suppliers which the Sub-contractor intends to procureadded, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplierexcise taxes, are advertised through the Public Contracts Scotland procurement portal and (▇▇▇ii) returned Vendor Products.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change"
Appears in 1 contract
Escrow. As soon as reasonably practicable following Subject to adjustment under Section 1.11, ninety percent (90%) of the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Units issuable to the Purchaser in relation Glycosan Stockholders (other than holders of Dissenting Shares) shall be delivered to the software and/or documentation agreed by Glycosan Stockholders as partial payment of the Parties that is to Merger Consideration, and ten percent (10%) of the Units issuable in the Merger shall be deposited issued and held in escrow (the “Escrowed Material”). The Service Provider shall deposit Escrow Units) by ▇▇▇▇▇ Fargo Bank, National Association (Escrow Agent) until the Escrowed Material with later of (i) the expiration of 180 days following the Closing Date (the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten Termination Date); and (10ii) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees on which all claims under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums Section 1.11 in respect of which a claim notice has been issued before the Purchaser exercises its right of recovery under clause 12 Escrow Termination Date (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaidEscrow Claim) has been resolved. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal An Escrow Claim shall not increase be deemed to have been resolved until (a) Glycosan and OrthoCyte have notified the burden of Escrow Agent in writing that the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvencyEscrow Claim has been resolved, or Default of (b) the Transferee; Escrow Claim has been resolved by a final court judgment or arbitration award. On or before the Closing Date, OrthoCyte and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procureGlycosan, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) ▇ as Representative of the Glycosan Stockholders, shall enter into an escrow agreement with Escrow Agent, in substantially the form attached as Exhibit D (the Escrow Agreement). OrthoCyte and awarded Glycosan agree that the Escrow Agreement shall provide for the delivery of Escrow Shares out of escrow in the manner provided in this Section and in Section 1.11 of this Agreement. The Escrow Agreement shall contain a provision under which OrthoCyte and Glycosan agree that, where a resolution of any dispute between the Parties results in an award or judgment from arbitration or any other legal proceeding in accordance with the provisions of Section 1.11, the Escrow Agent shall release the Escrow Units pursuant to, and following a fairthe receipt of, opendistribution instructions that are consistent with the award or judgment, transparent and competitive process proportionate delivered to the nature Escrow Agent by the prevailing Party or Parties. The number of Units to be placed in escrow pursuant to this Section 1.9 and value of the contract; includes provisions requiring Escrow Agreement will initially be withheld (and subsequently dispersed to the conduct of audits; extent provided or allowed under the terms hereof and is the Escrow Agreement) from the payment to be made to the Glycosan Stockholders pro rata in accordance with their respective individual interests in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider Merger Consideration. All costs and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right expenses incurred for the Service Provider to terminate that Sub-contract if Escrow Agent or otherwise in connection with the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; Escrow shall be borne by BioTime and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeOrthoCyte.
Appears in 1 contract
Sources: Merger Agreement (Biotime Inc)
Escrow. As soon as reasonably practicable following 20.1 If this Agreement is executed prior to the Commencement Closing Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to shall hold the Purchaser in relation to Downpayment and all interest accrued thereon, if any (collectively, the software and/or documentation agreed by the Parties that is to be deposited "Fund") in escrow (and shall dispose of the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material Fund only in accordance with the provisions of this Section 20.
20.2 Escrow Agent on shall deliver the basis Fund to Sellers or Purchaser, as the case may be, as follows:
(a) to Sellers, upon completion of the terms agreed Closing; or
(b) to Sellers, after receipt of Sellers' demand in which Sellers certifies either that (i) Purchaser has defaulted under this Agreement, or (ii) this Agreement has been otherwise terminated or canceled, and Sellers is thereby entitled to receive the Fund; but Escrow Agreement within Agent shall not honor Sellers' demand until more than ten (10) days after Escrow Agent has given a copy of Sellers' demand to Purchaser in accordance with Section 20.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Purchaser within such ten (10) day period; or
(c) to Purchaser, after receipt of Purchaser's demand in which Purchaser certifies either that (i) Sellers have 43 defaulted under this Agreement, or (ii) this Agreement has been otherwise terminated or canceled, and Purchaser is thereby entitled to receive the Fund; but Escrow Agent shall not honor Purchaser's demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser's demand to Sellers in accordance with Section 20.3(a), nor thereafter if Escrow Agent receives a Notice of Objection from Sellers within such ten (10) day period. Upon delivery of the Fund, Escrow Agent shall be relieved of all liability hereunder and with respect to the Fund. Escrow Agent shall deliver the Fund, at the election of the party entitled to receive the same, by (i) a good, unendorsed certified check of Escrow Agent payable to the order of such party, (ii) an unendorsed official bank or cashier's check payable to the order of such party, or (iii) a bank wire transfer of immediately available funds to an account designated by such party.
(a) Upon receipt of a written demand from Sellers or Purchaser under Section 20.2(b) or (c), Escrow Agent shall send a copy of such demand to the other party. Within ten (10) days after the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesreceiving same, but not thereafter, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider other party may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent object to delivery of the Purchaser. Notwithstanding clause 39.1, Fund to the Service Provider may assign to another person party making such demand by giving a notice of objection (an a "AssigneeNotice of Objection") the right to receive the price due Escrow Agent. After receiving a Notice of Objection, Escrow Agent shall send a copy of such Notice of Objection to the Service Provider party who made the demand; and thereafter, in its sole and absolute discretion, Escrow Agent may elect either (i) to continue to hold the Fund until Escrow Agent receives a written agreement of Purchaser and Sellers directing the disbursement of the Fund, in which event Escrow Agent shall disburse the Fund in accordance with such agreement; and/or (ii) to take any and all actions as Escrow Agent deems necessary or desirable, in its sole and absolute discretion, to discharge and terminate its duties under this Contract subject to: deduction Agreement, including, without limitation, depositing the Fund into any court of sums in respect competent jurisdiction and bringing any action of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; interpleader or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaserproceeding; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body and/or (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rightsiii) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectivelyany litigation between Sellers and Purchaser, to deposit the Fund with the clerk of the court in which such litigation is pending.
(b) If Escrow Agent is uncertain for any reason whatsoever as to its duties or rights hereunder (and whether or not Escrow Agent has received any written demand under Section 20.2(b) or (c), or Notice of Objection under Section 20.3(a)), notwithstanding anything to the contrary herein, Escrow Agent may hold and apply the Fund pursuant to Section 20.3(a)(i), (ii) or (iii) and may decline to take any other action whatsoever. In the event the Fund is deposited in a court by Escrow Agent pursuant to Section 20.3(a)(ii) or (iii), Escrow Agent shall be entitled to rely upon the decision of such court. In the event of any dispute whatsoever among the parties with respect to disposition of the Fund, (i) Purchaser and Sellers shall pay the attorney's fees and costs incurred by Escrow Agent (which said parties shall share equally, but for which said parties shall be 44 jointly and severally liable) for any litigation in which Escrow Agent is named as, or becomes, a party and (ii) as between Purchaser and Sellers, the bankruptcy or insolvency, or Default non-prevailing party shall pay the reasonable attorneys' fees and costs of the Transfereeprevailing party.
20.4 Notwithstanding anything to the contrary in this Agreement, within one (1) business day after the date of this Agreement, Escrow Agent shall place the Downpayment in an Approved Investment. The interest, if any, which accrues on such Approved Investment shall be deemed part of the Fund; and the Transferee Escrow Agent shall only be able to assign, novate or otherwise dispose of its rights such interest as and obligations under this Contract or any part thereof with the Fund pursuant to this Agreement. Escrow Agent may not commingle the Fund with any other funds held by Escrow Agent. Escrow Agent may convert the Fund from the Approved Investment into cash or a non-interest-bearing demand account at an Approved Institution as follows:
(a) at any time within seven (7) days prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of Closing Date; or
(b) if the Service Provider’s obligations under this Contract. In such circumstances Closing Date is accelerated or extended, at any time within seven (7) days prior to the accelerated or extended Closing Date (provided, however, that Sellers and Purchaser shall authorise give Escrow Agent timely notice of any such acceleration or extension and that Escrow Agent may hold the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking Fund in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, cash or a change of control is likely to occur; non-interest-bearing deposit account if Sellers and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may do not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting give Escrow Agent timely notice of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extentadjournment).
20.5 As used herein, the invoice must be treated as valid andterm "Approved Investment" means (a) any interest-bearing demand account or money market fund in Citibank, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeN.
Appears in 1 contract
Escrow. As soon as reasonably practicable following From and after the Commencement Datedate hereof, the Service Provider Parties (with the Company acting on behalf of the shareholders of the Company until Shareholder Representative shall enter into a standard form have been duly constituted and appointed by all of such shareholders) shall cooperate in good faith to, and, on or prior to the Effective Time, shall negotiate and draft an Escrow Agreement with a reputable Escrow Agent satisfactory pursuant to which:
(a) for the Purchaser purpose of securing the indemnification obligations of the shareholders of the Company set forth in relation to Article VIII and the software and/or documentation agreed by Indemnification Agreements, at the Parties that is to be deposited Closing, Parent will deposit in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis (i) certificates representing 15% of the terms agreed in the Escrow Agreement within ten Stock Consideration and (10ii) days cash representing 15% of the date Cash Consideration (such portions of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesStock Consideration and Cash Consideration, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign plus any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation thereon or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall notaccretions thereto, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being collectively referred to as the “TransfereeEscrow Fund”): the rights ) in lieu of termination transferring such portion of the Purchaser Stock Consideration and paying such portion of the Cash Consideration to holders of Certificates in clauses 64 accordance with Section 2.02;
(Termination Rightsb) distributions from the Escrow Fund will be made in accordance with Section 8.06;
(c) 100% of the Escrow Fund shall be held by the Escrow Agent (less any distributions to Parent in connection with indemnification of any Parent Indemnified Parties) until the later of (i) the six-month anniversary of the Closing Date and (ii) the date on which Parent completes an audit of the Surviving Corporation for the period ending December 31, 2006 (such later date, the “Initial Release Date”);
(d) on the Initial Release Date (or the next succeeding business day if such date is not a business day) the Escrow Agent shall release to the former holders of Certificates certificates representing 50% of the initial Stock Consideration deposited with the Escrow Agent (less any prior distributions to Parent in connection with indemnification of any Parent Indemnified Parties and less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties) and 65 (Termination on Insolvency ii) cash representing 50% of the initial Cash Consideration deposited with the Escrow Agent (less any prior distributions to Parent in connection with indemnification of any Parent Indemnified Parties and less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties);
(e) from and after the Initial Release Date (or Change of Controlthe next succeeding business day if such date is not a business day), all property and amounts remaining in the Escrow Fund after the release described in the preceding clause (d) shall be available held by the Escrow Agent (less any distributions to Parent in connection with indemnification of any Parent Indemnified Parties) until the 12-month anniversary of the Closing Date;
(f) on such 12-month anniversary of the Closing Date (or the next succeeding business day if such date is not a business day), the Escrow Agent shall release to the Service Provider former holders of Certificates all property and amounts then remaining in the event Escrow Fund (less a portion subject to then-existing claims for indemnification by any Parent Indemnified Parties); and
(g) any property and amounts remaining in the Escrow Fund thereafter shall be distributed to Parent in connection with indemnification of respectively, any Parent Indemnified Parties and/or released to the bankruptcy or insolvency, or Default former holders of Certificates upon final resolution of the Transferee; applicable disputes in accordance with any such resolution and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Section 8.06.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Merger Agreement (Ddi Corp)
Escrow. As soon as reasonably practicable following (a) At the Commencement DateClosing, a portion of the Purchase Price equal to the aggregate of the Purchase Price Reduction Amount, the Service Provider Environmental Indemnification Amount, the Operating Expense Liabilities Amount, the Known Liabilities Amount, and any amounts for Closing Date Payments under the last sentence of paragraph 5(a) (collectively, the "Escrow Fund") shall enter each be paid by Racing into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in an escrow account (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "AssigneeAccount") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (at ▇▇▇ ▇▇▇.▇▇▇ ▇▇▇▇ - ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇. The Account shall be entitled "Joint Escrow Account of ▇▇▇▇.▇▇▇ Town Racing Limited Partnership and PNGI ▇▇▇.▇▇▇▇ Town Gaming Limited Liability Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. joint Escrow Agents." The Account shall be a money market or similar interest bearing account as the Escrow Agents may in their discretion determine. The interest earned on the Escrow Fund shall become part of the Escrow Fund and shall be paid to Racing upon termination of the escrow, except that PCTG shall be paid interest on any amounts PCTG receives from the Purchase Price Reduction Amount, the Environmental Indemnification Amount and any sums awarded to PCTG from the Operating Expense Liabilities Amount.
(b) Optionor and PCTG hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. as joint escrow agents (the "Escrow Agents") and awarded following a fairthe Escrow Agents by their respective signatures on the execution page of this Closing Agreement, openaccept such appointment, transparent and competitive process proportionate agree to receive, deposit and deliver the Escrow Fund subject to the nature terms contained herein.
(c) The Escrow Agents' duties and value responsibilities shall be limited to those expressly set forth in the escrow provisions of this Closing Agreement. The Escrow Agents shall have no responsibility or obligation of any kind in connection with this Closing Agreement and the Escrow Fund except to disburse such funds either: (I) in accordance with the joint instructions of Optionor and PCTG, or (ii) in accordance with the final determination of the contract; includes Arbitrator (as defined below) or a court order enforcing the determination of the Arbitrator. The Escrow Agents shall not be required to deliver the Escrow Fund or any part thereof or take any action with respect to any matters that might arise in connection therewith, other than to receive, deposit and deliver the Escrow Fund as herein provided.
(d) The Escrow Agents shall not be charged with notice or knowledge of any fact or information not herein set out. The Escrow Agents shall not be required in any way to determine the validity, sufficiency, accuracy or genuineness, whether in form or in substance, of the Escrow Fund or of any instrument, document, certificate, statement or notice referred to in this Closing Agreement or contemplated hereby, or of any endorsement or lack of endorsement thereon, or of any description therein. It shall be sufficient if any writing purporting to be such instrument, document, certificate, statement or notice is delivered to the Escrow Agents and purports on its face to be correct in form and signed or otherwise executed by the party or parties required to sign or execute the same under this Closing Agreement. The Escrow Agents shall not be required in any way to determine the identity or authority of any person executing the same or the genuineness of any such signature.
(e) Should any controversy arise between or among Optionor and PCTG or any other person, firm or entity with respect to the escrow provisions requiring of this Closing Agreement, the conduct Escrow Fund, or any part thereof, or the right of audits; any party or other person to receive the Escrow Fund or any part thereof, or should the escrow provisions of this Closing Agreement terminate, or if the Escrow Agents should be in doubt or disagreement as to what action to take, (I) the Escrow Agents shall have the right, but not the obligation, either to withhold delivery of the Escrow Fund or portion thereof until the controversy is resolved in writing to the satisfaction of the Escrow Agents, the conflicting demands are withdrawn, or the doubt is resolved in writing to the satisfaction of Escrow Agents, or (ii) either Escrow Agent may institute a ▇▇▇▇ of interpleader in any court of competent jurisdiction to determine the rights of the parties hereto. The right of either Escrow Agent to institute such a ▇▇▇▇ of interpleader shall not, however, be deemed to modify the manner in which the Escrow Agents are entitled to make disbursements of the Escrow Fund as herein set forth other than to tender the Escrow Fund into the registry of such court. Should a ▇▇▇▇ of interpleader be instituted, or should either Escrow Agent be threatened with litigation or become involved in litigation in any manner whatsoever on account of the escrow provisions of this Closing Agreement or the Escrow Fund, or any portion thereof, then, as between themselves and is the Escrow Agents, Optionor and PCTG hereby bind and obligate themselves, their successors and assigns, to pay to the Escrow Agents the respective attorney's fees and any and all other disbursements, expenses, losses, costs and damages of each Escrow Agent in connection with or resulting from such threatened or actual litigation, as provided in subparagraphs (h), (i) and (j) below.
(f) In the event of any disagreement or conflicting instructions resulting in adverse claims or demands being made upon the Escrow Agents in connection herewith, or in the same terms event that the Escrow Agents (or either of them), in good faith, are in doubt as that set out to what action should be taken hereunder, either may, at his option, refuse to comply with any claims or demands on him, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in this clause 41.3 (including this clause 41.3.5 subject only any such event, the Escrow Agents shall not be or become liable in any way or to modification any party for their failure or refusal to refer act until all differences shall have been adjusted and all doubt resolved in writing to the correct designation satisfaction of the equivalent party as Escrow Agents.
(g) Without in any way limiting any other provision of the Service Provider escrow provisions of this Closing Agreement, it is expressly understood and Sub-contractor as agreed that Escrow Agent shall be under no duty or obligation to give any notice, or to do or to omit the case may bedoing of any action or anything with respect to the Escrow Fund, except to receive, deposit and deliver the Escrow Fund in accordance with the escrow provisions of this Closing Agreement. The Service Provider Escrow Agents shall also include not be liable for any error in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance judgment, any act or omission, any mistake of its contract with legal obligations in the fields of environmental, social or employment law or if fact, or for anything either may do or refrain from doing in connection herewith, except for his own willful misconduct or gross negligence. All actions to be taken by the Escrow Agents hereunder shall be taken only upon the agreement of both Escrow Agents, except for actions specifically stated herein which may be taken by one or either Escrow Agent.
(h) Optionor and PCTG jointly and severally hereby agree to indemnify the Escrow Agents against, and hold each harmless from, any and all losses, costs, damages, expenses, claims and attorney's fees, including but not limited to costs of investigation, suffered or incurred by any Escrow Agent in connection with or arising from or out of this Closing Agreement, except such acts or omissions as may result from the willful misconduct or gross negligence of such Escrow Agent.
(i) Each of the termination events specified Escrow Agents may consult with his counsel or other counsel satisfactory to him concerning any question relating to his duties or responsibilities hereunder or otherwise in clause 64.3 (Termination Rights) occur; connection herewith and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in shall not be liable for any Sub-contract which it awards. Where requested action taken, suffered or omitted by the Purchaser, copies Escrow Agent in good faith upon the advice of such counsel. All of the Escrow Agents' rights hereunder are cumulative of any Sub-contract must be sent other rights either may have by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changelaw or otherwise.
Appears in 1 contract
Escrow. A total of 183,196 shares of Parent Common Stock (the "ESCROW SHARES") to be issued pursuant to SECTION 1.7(a) hereof in respect of shares of Company Capital Stock issued and outstanding immediately prior to the Effective Time, will, without any act of any Company Stockholder, be deposited with the Escrow Agent, such deposit to constitute an Escrow Fund (as defined in SECTION 6.3 to be governed by the terms of SECTION 6.3. The portion of the Escrow Shares contributed by each Company Stockholder is set forth opposite such Company Stockholder's name in EXHIBIT B. With respect to each Company Stockholder who will receive Merger Shares pursuant to SECTION 1.7(a) that are also Restricted Merger Shares, (i) such Company Stockholder's contribution to the Escrow Shares shall be comprised of Restricted Merger Shares and Unrestricted Merger Shares in the same proportions as the total number of Merger Shares such Company Stockholder is entitled to receive is comprised of Restricted Merger Shares and Unrestricted Merger Shares and (ii) the Restricted Merger Shares of such Company Stockholder included in the Escrow Shares shall be allocated among the different tranches of Restricted Merger Shares that Vest at different times in the same proportions as all of such Company Stockholder's Restricted Merger Shares are allocated among such different tranches; provided, however, that the Escrow Fund shall not include any Merger Shares that are also Restricted Merger Shares pursuant to the Preference Stock Restriction Agreements (as defined in SECTION 5.2(l)). Any fractional share that would otherwise result from the issuance of a certificate representing the shares of Parent Common Stock to be deposited into escrow pursuant to this SECTION 1.7(b) shall be rounded up to the nearest whole share, and any fraction of a share that would otherwise result from the issuance of a certificate representing the remaining shares of Parent Common Stock which each such Company Stockholder would otherwise be entitled to receive under SECTION 1.7(a) by virtue of ownership of outstanding shares of Company Capital Stock shall be rounded down to the nearest whole share. No Merger Shares shall be deposited in the Escrow Fund with respect to the Company Options. As soon as reasonably practicable following after the Commencement DateEffective Time, and subject to and in accordance with the Service Provider provisions of SECTION 6.3 hereof, Parent shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is cause to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with distributed to the Escrow Agent on a certificate or certificates representing the basis aggregate number of the terms agreed Merger Shares included in the Escrow Agreement within ten (10) days of Shares, which shall be registered in the date name of the Escrow Agreement being signedAgent. Such shares deposited in the Escrow Fund shall be beneficially owned by the holders on whose behalf such shares were deposited in the Escrow Fund. The Service Provider shall pay the initial storage fees, the annual fees and update fees under Merger Shares deposited in the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Fund shall be available to compensate Parent as provided in ARTICLE VI. Until surrendered in accordance with SECTION 1.9, each -10- 15 outstanding Certificate that, prior to the Service Provider in Effective Time, represented shares of Company Capital Stock will be deemed from and after the event Effective Time, for all corporate purposes, other than the payment of respectivelydividends, to evidence the bankruptcy or insolvency, or Default ownership of the Transferee; and the Transferee number of full shares of Parent Common Stock into which such shares of Company Capital Stock shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇been so converted.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Merger Agreement (Realnetworks Inc)
Escrow. As soon as reasonably practicable following 2.1 The Shareholder hereby places and deposits in escrow with the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to a total of 4,355,000 exchangeable shares of the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow Corporation (the “Escrowed MaterialShares”). The Service Provider shall deposit the Escrowed Material with ) and hereby delivers to the Escrow Agent on the basis certificates identified in Schedule A representing the Escrowed Shares. If at any time for any reason a replacement certificate or replacement certificates are issued representing any Escrowed Shares or if any Escrowed Shares are converted or exchanged into shares of another class or series of the terms agreed Corporation or shares or other securities of another corporation, the Shareholder shall deliver such replacement certificate or certificates, or the certificates representing the shares in such other class, series or corporation, to the Escrow Agreement within ten (10) days Agent.
2.2 While the Escrowed Shares are held in escrow, the Shareholder hereby irrevocably nominates, constitutes and appoints the secretary of the date of Corporation, or such other individual who performs functions for the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign Corporation similar to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been those normally performed by the Purchaser; or any private sector body which substantially performs the functions secretary of the PurchaserCorporation (with full power of substitution), provided that any such assignationas the true and lawful attorney for the Shareholder with authority to do all things and execute and deliver, novation or other disposal shall not increase on behalf of and in the burden name of the Service Provider’s obligations under this Contract. Any change in Shareholder: (i) such proxies to vote (A) the legal status Escrowed Shares at any and all meetings of the Purchaser such that it ceases to be a Government Body shall notshareholders of the Corporation, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit (B) shares of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated other corporation held beneficially or otherwise disposed in trust as a result of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status Shareholder’s ownership of the Purchaser such that it ceases to be a Government Body Escrowed Shares; (in the remainder of this clause both ii) such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent resolutions in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance shareholders of the Service ProviderCorporation in accordance with section 142 of the Canada Business Corporations Act; and (iii) instruct or withhold from instructing the Trustee to cast and exercise the Shareholder’s obligations under this Contract. In such circumstances Beneficiary Votes and attend all PureRay U.S. Meetings and personally exercise, or withhold for exercising, thereat, as proxy of the Purchaser shall authorise Trustee, the Transferee to use such Service Provider Confidential Information only for purposes Shareholder’s Beneficiary Votes relating to the performance Escrowed Shares; and, in each case, the Shareholder shall have no claim or cause of action against any party hereto or against any third party as a result of the Service Provider’s obligations under this Contract secretary of the Corporation or such other individual so acting as its attorney. Such appointment and for no other purpose power of attorney, being coupled with an interest, shall not be revoked by the insolvency or bankruptcy of the Shareholder and shall take the Shareholder hereby ratifies and confirms all reasonable steps to ensure actions that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment secretary of the Sub-contractors specified Corporation or such other individual may lawfully do or cause to be done by virtue of such appointment and power.
2.3 While the Escrowed Shares are in Schedule 7 (Approved Sub-contractors) escrow, the Shareholder shall not be entitled, at any time and from time to time, to collect and receive any dividends or other distributions in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without Escrowed Shares; and the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable Shareholder hereby forever waives, to the Service Provider under this Contract. The Service Provider shall be responsible for the acts fullest extent permitted by law, its entitlement to such dividends and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider other distributions in respect of Services the Escrowed Shares.
2.4 The Escrowed Shares and the Sub-contractor’s invoice relates to such Services thenbeneficial ownership of or any interest in, to that extentand the certificates representing, the invoice must Escrowed Shares shall not be treated as valid andtransferred, provided the Service Provider is not exercising a right of retention gifted, sold, assigned, mortgaged, pledged, hypothecated, alienated, released from escrow, transferred within escrow, or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts dealt with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by manner except as expressly provided in section 3 hereof.
2.5 The Shareholder hereby directs the Purchaser, copies of any Sub-contract must be sent by Escrow Agent to retain the Service Provider to Escrowed Shares and the Purchaser as soon as reasonably practicable. Where certificates representing the Service Provider proposes to enter into a Sub-contract it must: advertise its intention Escrowed Shares and not to do so or cause anything to be done to release the Escrowed Shares from escrow or to allow any transfer, gift, assignment, mortgage, pledge, hypothecation or alienation thereof except as expressly provided in at least one trade journal section 3 hereof.
2.6 All share certificates representing the Escrowed Shares shall be endorsed with the following legend: The securities represented by this certificate are subject to an escrow and share purchase agreement and such securities may not be pledged, sold or otherwise transferred except in accordance with the Public Contracts Scotland Portal; and follow a procedure leading to the selection provisions of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changeagreement.
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Escrow. As soon (a) Holder hereby authorizes and directs the person designated by the Company to transfer the Unreleased Shares as reasonably practicable following to which the Commencement DateForfeiture Option is effective from Holder to the Company.
(b) To insure the availability for delivery of Holder’s Unreleased Shares upon forfeiture pursuant to Section 3.1, Holder hereby appoints the person designated by the Company as escrow agent as its attorney-in-fact to sell, assign and transfer unto the Company, such Unreleased Shares, if any, forfeited pursuant to the Forfeiture Option and shall, upon execution of this Agreement, deliver and deposit with such person designated by the Company the share certificates representing the Unreleased Shares, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit A. If married, Holder shall obtain the consent of his or her spouse to this Agreement in the form attached hereto as Exhibit B. The Unreleased Shares and stock assignment shall be held by the Company’s designee in escrow, pursuant to the Joint Escrow Instructions of the Company and Holder attached as Exhibit C hereto, until the Forfeiture Restriction becomes effective as provided in Section 3.1, until such Unreleased Shares are vested, or until such time as this Agreement no longer is in effect. Upon vesting of the Unreleased Shares, the Service Provider escrow agent shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory deliver to the Purchaser Holder, upon request, the certificate or certificates representing such Shares in relation the escrow agent’s possession belonging to the software and/or documentation agreed by Holder, and the Parties escrow agent shall be discharged of all further obligations hereunder; provided, however, that is the escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to other restrictions imposed pursuant to this Agreement.
(c) The Company, or its designee, shall not be deposited liable for any act it may do or omit to do with respect to holding the Shares in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed and while acting in good faith and in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any exercise of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇judgment.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
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Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable 20.1 Escrow Agent satisfactory shall hold the Downpayment and all interest accrued thereon, if any, in escrow, and shall dispose of the Downpayment only in accordance with the provisions of this Article 20. Unless otherwise stated herein below, all references to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider Downpayment shall deposit the Escrowed Material with the include such accrued interest, if any.
20.2 Escrow Agent on shall deliver the basis Downpayment to Seller or Purchaser, as the case may be, as follows:
(a) to Seller, upon completion of the terms agreed Closing;
(b) to Seller, after receipt of Seller’s demand in which Seller certifies either that:
(i) Purchaser has defaulted under this Agreement; or
(ii) this Agreement has been otherwise terminated or canceled, and Seller is thereby entitled to receive the Downpayment, but Escrow Agreement within Agent shall not honor Seller’s demand until more than ten (10) days after Escrow Agent has given a copy of the date Seller’s demand to Purchaser in accordance with Section 20.3, nor thereafter if Escrow Agent receives a Notice of the Escrow Objection from Purchaser within such ten (10) day period; or
(c) to Purchaser, after receipt of Purchaser’s demand in which Purchaser certifies either that:
(i) Seller has defaulted under this Agreement, or
(ii) this Agreement being signed. The Service Provider shall pay the initial storage feeshas been otherwise terminated or canceled, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right is thereby entitled to receive the price due Downpayment, but Escrow Agent shall not honor Purchaser’s demand until more than ten (10) days after Escrow Agent has given a copy of Purchaser’s demand to Seller in accordance with Section 20.3, nor thereafter if Escrow Agent receives a Notice of Objection from Seller within such ten (10) day period. Upon delivery of the Downpayment, Escrow Agent shall be relieved of all liability hereunder with respect to the Service Provider under this Contract subject to: deduction of sums in respect of which Downpayment. Escrow Agent shall deliver the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all Downpayment, at the related rights election of the Purchaser under this Contract in relation party entitled to receive the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoicessame, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changeby:
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Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited 2.1 The Securityholder hereby places and deposits in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis Escrowed Shares and hereby delivers to the Escrow Agent the certificates identified in Schedule “A” representing the Escrowed Shares. If at any time and for any reason one or more replacement certificates are issued representing the Escrowed Shares or if the Escrowed Shares are converted or exchanged into shares of another class, series or company, the Securityholder agrees to deliver such replacement certificate or certificates, or the certificates representing the shares in another class, series or new company, to the Escrow Agent. While the Escrowed Shares are in escrow, the Securityholder shall be entitled to all rights as the beneficial and registered owner of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesEscrowed Shares including, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightswithout limitation, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to vote and to receive the price due to the Service Provider under this Contract subject to: deduction of sums all dividends and other distributions in respect of which the Purchaser exercises its right Escrowed Shares.
2.2 The Escrowed Shares and the beneficial ownership of recovery under clause 12 (Recovery of Sums Due); or any interest in, and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6certificates representing, the Purchaser may assignEscrowed Shares shall not be transferred, novate gifted, sold, assigned, mortgaged, pledged, hypothecated, alienated, released from escrow, transferred within escrow, or otherwise dispose of its rights dealt with in any manner except as expressly provided in Section 3.
2.3 The Securityholder hereby directs the Escrow Agent to retain the Escrowed Shares and obligations under this Contract the certificates representing the Escrowed Shares and not to do or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases cause anything to be a Government Body shall notdone to release the Escrowed Shares from escrow or to allow any transfer, subject to clause 39.6gift, affect assignment, mortgage, pledge, hypothecation or alienation thereof except as expressly provided in section 3.
2.4 The Corporation hereby acknowledges the validity terms and conditions of this Contract. In such circumstances, this Contract shall bind Agreement and inure agrees to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract facilitate its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇performance.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
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Sources: Voluntary Escrow Agreement
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider (a) The Deposit shall enter into a standard form Escrow Agreement with a reputable be held in escrow in an interest bearing account by Escrow Agent satisfactory until delivered as herein provided. Any interest earned on the Deposit shall be paid to whichever party is entitled thereto. Such interest shall not be credited against the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”)Aggregate Price. The Service Provider Deposit shall deposit the Escrowed Material with the be held and disbursed by Escrow Agent on in the basis following manner:
(i) to Seller at the Closing Date upon consummation of the terms agreed closing; or
(ii) to Seller upon receipt of written demand therefor, stating that Purchaser has defaulted in the Escrow Agreement within ten (10) days performance of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees Purchaser's obligations under the Escrow this Agreement and the facts and circumstances underlying such default; provided, however, that Escrow Agent shall not honor such demand until at least five (5) days after it has sent a copy of such demand to Purchaser, nor thereafter if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of clause (b) of this SECTION 1.4; or
(iii) to Purchaser upon receipt of written demand therefor, stating that either (x) this Agreement has been terminated and certifying the basis for such termination, or (y) Seller has defaulted in performance of Seller's obligations and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that Escrow Agent shall pay not honor such demand until at least five (5) days after it has sent a copy of such demand to Seller, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the release feeprovisions of clause (b) of this SECTION 1.4.
(b) Upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (ii) or (iii) of SECTION 1.4(A), Escrow Agent shall promptly send a copy thereof to the other party. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") other party shall have the right to receive the price due object to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights delivery of the Purchaser under this Contract in relation Deposit by sending written notice of such objection to Escrow Agent within five (5) days after Escrow Agent sends a copy of the written demand to the recovery objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of sums due but unpaidthe Deposit. The Service Provider must notify or ensure that any Assignee notifies Upon receipt of such notice, Escrow Agent shall promptly send a copy thereof to the Purchaser party who made the written demand.
(c) In the event of any variations to dispute between the arrangements for making payments parties, Escrow Agent, at its option, may disregard all instructions received and may hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of this fact in writing by both Seller and Purchaser, or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. Escrow Agent is otherwise instructed by a final judgment of a court of competent jurisdiction.
(d) In the absence of such notification event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the Purchaser is under no obligation to vary its arrangements for making payments parties hereto, or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform instructions which conflict with any of the functions that had previously provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both Seller and Purchaser, or by final judgment of a court of competent jurisdiction.
(e) Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been performed signed or presented by the Purchaser; proper party or any private sector body which substantially performs the functions of the Purchaserparties, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity modification of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Agreement shall be available to the Service Provider signed by Escrow Agent, Purchaser and Seller.
(f) Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; connection with its entering into this Agreement and the Transferee shall only be able to assign, novate or otherwise dispose carrying out of its rights duties hereunder, including the costs and obligations under this Contract expenses of defending itself against any claim of liability or participating in any part thereof legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the prior consent opinion of such counsel.
(g) Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use resignation specifying a date when such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and resignation shall take all reasonable steps to ensure effect; provided, however, that the Transferee gives a confidentiality undertaking in relation prior to such Service Provider Confidential Informationresignation a substitute escrow agent is approved in writing by Seller and Purchaser, which approval shall not be unreasonably withheld or delayed. Change of Control The Service Provider must notify After such resignation, Escrow Agent shall have no further duties or liability hereunder.
(h) Purchaser and Seller, together, shall have the Purchaser: whenever it proposes right to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves terminate the appointment of Escrow Agent hereunder by giving to it notice of such termination, specifying the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect date upon which such termination shall take effect and designating a replacement escrow agent, who shall sign a counterpart of this Agreement. Upon demand of such successor escrow agent, the Deposit shall be turned over and delivered to such successor escrow agent, who shall thereupon be bound by all of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider provisions hereof.
(i) Seller and Purchaser shall be jointly and severally responsible for the acts reimbursement to Escrow Agent of all expenses, disbursements and omissions advances (including reasonable attorneys' fees) incurred or made by Escrow Agent in connection with the carrying out of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires duties hereunder.
(j) Escrow Agent's agreements and obligations hereunder shall terminate and Escrow Agent shall be discharged from further duties and obligations hereunder upon final payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should Deposit in accordance with the Sub-contractor have any difficulty in securing the timely payment terms of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇this Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable (i) Within one (1) Business Day following the Commencement closing of the Share Purchase, the Company shall deposit, for good and valuable consideration, the receipt, sufficiency and adequacy of which the Company hereby acknowledges, into an escrow account (the “Escrow Account”) with American Stock Transfer & Trust Company (the “Escrow Agent”), subject to the terms of a written escrow agreement (the “Escrow Agreement”) substantially in the form attached as Exhibit A hereto and to be entered into on or prior to the Share Purchase Closing Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory an amount equal to the Purchaser in relation to the software and/or documentation agreed Shares Purchase Price multiplied by the Parties that is to be deposited in escrow number of Shares held by Investor as of the closing of the Share Purchase (the “Escrowed MaterialFunds”). The Service Provider Escrow Agreement shall deposit the Escrowed Material with irrevocably cause the Escrow Agent on the basis of the terms agreed in to release from the Escrow Agreement within ten (10) days of Account the date of the Escrow Agreement being signedaggregate Shares Purchase Price in accordance with Section 1. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider Escrow Agent to Investor in accordance with Section 1 or to Investor and the Company in accordance with Section 4(d), if applicable, will be made solely with the Escrowed Funds.
(ii) Upon receipt by the Escrow Agent and Company of written notice that Investor has sold Shares in the open market other than an Early Sale as provided in Section 4(d), the Escrow Agent shall release to the Sub-contractor Company for the Company’s use without restriction an aggregate amount equal to the number of Shares sold multiplied by the Shares Purchase Price; provided that if Investor sold any Early Sale Shares, within a specified period not exceeding thirty five (305) days Business Days of the Company’s and the Escrow Agent’s receipt of the applicable Open Market Sale Notice, the Escrow Agent shall release from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment Escrow Account (a) for Investor’s use without restriction an amount equal to the Service Provider Early Sale Premium with respect to the Early Sale Shares sold by Investor, and (b) for the Company’s use without restriction an amount equal to the number of Early Sale Shares sold in respect the Early Sale multiplied by $10.36.
(iii) In the event that Investor elects not to sell to the Company any Shares held by Investor by either (A) Investor delivering a written notice to the Company stating Investor’s intention not to sell any Shares to the Company, or (B) Investor failing to timely deliver a Shares Sale Notice to the Company pursuant to Section 1(a) for all of Services and the Sub-contractor’s invoice relates to such Services then, to that extentits Shares, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor Company may promptly issue instructions to the Service Provider, payment must be made Escrow Agent to release from the Escrow Account to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract Company for the benefit Company’s use without restriction an amount equal to (x) the Shares Purchase Price multiplied by (y) the number of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred Shares held by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Investor.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Forward Share Purchase Agreement (8i Acquisition 2 Corp.)
Escrow. As soon as reasonably practicable following (a) If the Commencement Date, Senior Adviser exercises any of his Accelerated Options during the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to Term and disposes of any of the Purchaser in relation to shares of Common Stock of the software and/or documentation agreed by the Parties that is to be deposited in escrow Company (the “Escrowed MaterialShares”). The Service Provider shall ) acquired upon such exercise, the Senior Adviser will deposit the Escrowed Material with Net Proceeds (as defined below) into an escrow account (the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10“Escrow”) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body be established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof Company with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ (or such other bank mutually acceptable to the parties) on terms consistent with the provisions of this Section 11. In addition, any Escrow Shares acquired upon exercise of an Accelerated Option by the Senior Adviser during the Term shall be deposited into the Escrow. The Escrow Shares (or the Net Proceeds thereof, if applicable) deposited into Escrow are assets of the Senior Adviser, not of the Company and the terms of the escrow agreement will provide that the assets in the Escrow will not be subject to the claims of the creditors of the Company and will be released only as provided herein. During the Term, the Senior Adviser shall not transfer any Escrow Shares acquired upon exercise of an Accelerated Option other than pursuant to an arms-length sale to an independent third party.▇▇▇
(b) To the extent that an Option is partly a Vested Option and partly an Accelerated Option, any exercise of the Option shall be deemed first to be the exercise of a Vested Option. Any disposition of Shares acquired upon exercise of an Accelerated Option shall be deemed first to be a disposition of Unrestricted Shares. Any Shares used to pay the exercise price and/or satisfy withholding taxes in connection with the exercise on an Accelerated Option will be Unrestricted Shares.▇▇
(c) and awarded Within 2 business days following the earlier of (i) the expiration of the Term at December 31, 2016 or (ii) an Involuntary Termination or (iii) any other termination of the Senior Adviser other than a termination described in the following sentence, all amounts in the Escrow will be paid to the Senior Adviser, including interest on all amounts held in the Escrow. Within 2 business days following a fairtermination by the Senior Adviser described in Section 10 or a termination by the Company for Cause, open, transparent and competitive process proportionate all amounts in the Escrow will be paid to the nature and value Company.
(d) For purposes of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeSection 11,
Appears in 1 contract
Sources: Non Disclosure, Non Competition, Non Hiring, Non Solicitation and Severance Agreement (CIFC Corp.)
Escrow. As soon as reasonably practicable The following terms shall apply to the Commencement Escrow Amount:
(i) If, prior to final release of the Escrow Amount to the Stockholder, the Stockholders become finally obligated to make payments in respect of any Damages pursuant to this Article VII and such obligation is not in dispute, then, subject to the provisions of this Section 7.5, Flotek and the Stockholders’ Representative shall promptly (but in any event within five Business Days of such obligation arising (or, if later, ceasing to be in dispute)) issue joint written instructions to the Escrow Agent instructing the Escrow Agent to release the amount pursuant to such obligation (up to a maximum amount equal to the Escrow Amount then on deposit in the Escrow Account) from the Escrow Account to the Flotek Indemnified Party within three (3) Business Days of receipt of such joint written instructions.
(ii) To the extent the Stockholders are obligated to make payments in respect of any Damages pursuant to this Article VII, such Damages shall be satisfied first by the release to the Flotek Indemnified Party from the Escrow Account of the amount payable by the Stockholders, fifty percent (50%) in cash and fifty percent (50%) in Flotek Shares, with Flotek Shares valued for such purpose at the Closing Stock Value. To the extent the Escrow Amount then on deposit in the Escrow Account is insufficient to fully satisfy any such Indemnified Amount, then, subject to the provisions of this Section 7.5, any remaining payments that the Stockholders are obligated to make shall be payable directly by the Stockholders pursuant to Section 7.2.
(iii) On the Escrow Interim Release Date, Flotek and the Service Provider Stockholders’ Representative shall enter into a standard form issue joint written instructions to the Escrow Agent instructing the Escrow Agent to release to the Stockholders from the Escrow Account within three Business Days of receipt of such joint written instructions $5,000,000 minus (A) the amount, if any, of such Escrow Amount that the Escrow Agent has released in accordance with this Agreement and the Escrow Agreement with a reputable as of such date, (B) the amount, if any, of such Escrow Amount that the Escrow Agent satisfactory has been instructed to release in accordance with this Agreement and the Escrow Agreement but has not actually released as of such date and (C) if any Flotek Indemnified Party has on or prior to such date asserted in good faith a Claim with respect to any Damages, a reasonable reserve amount (as determined by Flotek). Any amounts released pursuant to this Section 7.5(iii) shall be released in the form of 50% cash (among the Stockholders pro rata in proportion to the Purchaser total amount of cash to be received by each of them under Section 3.1(a) above) and 50% Flotek Shares (among the Stockholders pro rata in relation proportion to the software and/or documentation agreed by the Parties that is total number of Flotek Shares to be deposited received by each of them under Section 3.1(a) above), based on a valuation of the Flotek Shares at the Closing Stock Value.
(iv) On the Escrow Final Release Date, Flotek and the Stockholders’ Representative shall issue joint written instructions to the Escrow Agent instructing the Escrow Agent to release to the Stockholders from the Escrow Account within three Business Days of receipt of such joint written instructions (A) the Escrow Amount then on deposit in escrow the Escrow Account, if any, minus (B)(1) the “Escrowed Material”amount, if any, of such Escrow Amount that the Escrow Agent has been instructed to release in accordance with this Agreement and the Escrow Agreement but has not actually released as of such date and (2) if any Flotek Indemnified Party has on or prior to such date asserted in good faith a Claim with respect to any Damages, a reasonable reserve amount (as determined by Flotek). The Service Provider cash to be released under this Section 7.5(iv) shall be distributed among the Stockholders pro rata in proportion to the total amount of cash to be received by each of them under Section 3.1(a) above) and the Flotek Shares to be released under this Section 7.5(iv) shall be distributed among the Stockholders pro rata in proportion to the total number of Flotek Shares to be received by each of them under Section 3.1(a) above).
(v) Following resolution from time to time of any Claim for which a reserve of a portion of the Escrow Amount then on deposit was established as described in Sections 7.5(e)(iii), Flotek and the Escrowed Material with Stockholders’ Representative shall execute and deliver to the Escrow Agent on the basis of the terms agreed in joint written instructions instructing the Escrow Agreement within ten (10) days of the date of Agent to release such reserve amount from the Escrow Agreement being signed. The Service Provider shall pay Account to the initial storage feesStockholders, the annual fees Flotek Indemnified Parties, or both, as appropriate for the resolution of such Claim within three Business Days of receipt of such joint written instructions.
(vi) If Flotek or the Stockholders’ Representative shall fail to timely execute and update fees under deliver joint written instructions when required hereunder, the Stockholders’ Representative or Flotek, respectively, shall be entitled to seek an order, judgment or decision that will enable the Escrow Agreement and Agent to distribute to the Purchaser shall pay Stockholders or the release fee. Assignation The Service Provider may not assign any of its rightsFlotek Indemnified Party, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1as applicable, the Service Provider may assign Escrow Amount to another person (an "Assignee") which it is entitled and to seek Damages from Flotek or the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoicesStockholders, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence as applicable, as a result of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails failure to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changeherewith.
Appears in 1 contract
Escrow. As soon as reasonably practicable following At the Commencement Effective Time, ten percent (10%) of the sum of the Merger Shares and Stock Options (collectively, the "Escrow Deposit") shall be delivered to the Escrow Agent, to be held for a period ending on the Escrow Release Date, except the Service Provider shall enter into Escrow Deposit may be withheld after the Escrow Release Date to satisfy claims for indemnification which are the subject to a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Claims Notice delivered prior to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”)Escrow Release Date. The Service Provider Escrow Deposit shall deposit the Escrowed Material with be held and disbursed by the Escrow Agent on the basis of the terms agreed in accordance with an Escrow Agreement in the form attached hereto as Exhibit C. For the purpose of any claim against the Escrow Agreement within ten (10) days of Deposit hereunder, the date value per share of the Escrow Deposit shall be deemed to be the Closing Market Price (less the exercise price therefore with respect to the Stock Options). Except with respect to claims based on fraud committed by the Company or the Equityholders, which are not limited, if the Closing occurs, Parent agrees that Parent's sole and exclusive remedy and recourse against the Equityholders under this Agreement being signed. The Service Provider shall pay for Losses attributable to any inaccuracy or breach of any representation or warranty of the initial storage fees, Company or the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest Equityholders which is contained in this Contract Agreement or the Letter of Transmittal or any part of it without the prior written consent Schedule or certificate delivered pursuant hereto or thereto other than Losses arising under Section 13.5 and from breaches of the Purchaser. Notwithstanding clause 39.1representations and warranties set forth in Sections 3.4, 3.9 and 3.11 (the Service Provider may assign to another person (an "AssigneeCovered Representations") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available against the Escrow Deposit held in escrow pursuant to the Service Provider Escrow Agreement. Notwithstanding anything herein to the contrary, except as provided under Section 13.5 and in the event next sentences, (i) the Equityholders shall have no liability for indemnification pursuant to this Article XII until the aggregate Losses to the Parent and the Company exceed $25,000 (the "Basket"), at which point the Equityholders shall be liable for the full amount of respectivelyall Losses, and (ii) the bankruptcy maximum aggregate liability of the Equityholders hereunder shall not exceed the value (determined by reference to the Closing Market Price) of the Escrow Deposit (the "Maximum Indemnification"). With respect to indemnification claims arising under Section 12.1(i) from any inaccuracy in or insolvencybreach of any Covered Representations, or Default of the Transferee; and the Transferee shall only be able to assignfor Sections 12.1(ii), novate (iii) or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractorsiv) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract Article XII, neither the Basket nor the Maximum Indemnification limitation shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇apply.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Merger Agreement (Go2net Inc)
Escrow. As soon (a) For purposes of payment of the Stockholders’ obligations pursuant to Article 9, an amount equal to the Indemnity Escrow Amount shall be held in escrow until distribution is required under the terms of the Escrow Agreement. With respect to each Stockholder who has delivered a Letter of Transmittal, the amount equal to such Stockholder’s portion of the Indemnity Escrow Amount, as reasonably practicable following set forth in the Commencement Estimated Statement, associated with the shares of capital stock of the Company owned of record by such Stockholder shall be allocated to such Stockholder’s escrow account maintained pursuant to the Escrow Agreement for indemnification purposes, such amount to be adjusted as set forth in the Escrow Agreement (each, an “Indemnity Escrow Account”), it being understood that the Indemnity Escrow Amount shall consist of: (i) with respect to Accredited Holders, solely Stock Merger Consideration and (ii) with respect to Non-Accredited Holders, solely Cash Merger Consideration. The approval of this Agreement by the Stockholders will constitute their approval of the terms and conditions of the Escrow Agreement, which is an integral part of the Transaction, and the appointment of the Stockholder Representative.
(b) The parties to this Agreement acknowledge and agree that (i) the shares of Parent Common Stock consisting of the portion of the Indemnity Escrow Amount allocable to Accredited Holders and (ii) the cash consisting of the portion of the Indemnity Escrow Amount allocable to Non-Accredited Holders, in each case, are being deemed delivered by the Parent to the Stockholder on or promptly after the Closing Date, after which each Stockholder who has delivered a Letter of Transmittal is deemed to immediately deposit its pro rata portion of the Service Provider shall enter into a standard form Indemnity Escrow Agreement with a reputable Escrow Agent satisfactory Amount based on the Merger Consideration payable to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material Stockholders who have delivered Letters of Transmittals with the Escrow Agent on the basis of the terms agreed in pursuant to the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Merger Agreement (Enernoc Inc)
Escrow. As soon as reasonably practicable (a) Immediately following the Commencement DateClosing, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay deliver the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign Escrow Cash to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇-▇▇▇▇▇▇▇▇▇, Hill & ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ LLP (the "Escrow Agent"), as escrow agent, to be held by Escrow Agent as collateral for the Corporation's indemnification obligations under Article 10 and pursuant to the provisions of an escrow agreement (the "Escrow Agreement") in a form to be mutually agreed by the parties hereto prior to Closing and, upon such agreement, to be attached hereto as Exhibit 2.7.▇▇▇.▇▇
(b) The Escrow Cash will be held by the Escrow Agent from the date it is deposited by Purchaser until the date that is twelve (12) months after the Closing Date (the "Escrow Period") and awarded following a fairinvested by the Escrow Agent as provided in the Escrow Agreement. Following the Escrow Period, open, transparent and competitive process proportionate any Escrow Cash remaining in the escrow account shall be paid to the nature Icarian Stockholders in accordance with the Escrow Agreement.
(c) In the event that the Merger is approved by the Icarian Stockholders as provided herein, the Icarian Stockholders shall, without any further act of any Icarian Stockholder, be deemed to have consented to and value approved (i) the use of the contract; includes provisions requiring Escrow Cash as collateral for the conduct of audits; and is Corporation's indemnification obligations under Article 10 in the same terms manner set forth in Article 10 and the Escrow Agreement, (ii) the appointment of Apax Partners as that set out in this clause 41.3 the representative of the Icarian Stockholders (including this clause 41.3.5 subject only to modification to refer the "Stockholder Representative") with respect to the correct designation matters set forth in Article 10 and under the Escrow Agreement and as the attorney-in-fact and agent for and on behalf of each Icarian Stockholder (other than holders of Dissenting Shares), and the taking by the Stockholder Representative of any and all actions and the making of any decisions required or permitted to be taken by him under the Escrow Agreement (including, without limitation, the exercise of the equivalent party as power to: authorize delivery to the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include Purchaser of Escrow Cash in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance satisfaction of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested claims by the Purchaser; agree to, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to negotiate, enter into a Sub-contract it must: advertise its intention settlements and compromises of and demand arbitration and comply with orders of courts and awards of arbitrators with respect to do so in at least one trade journal and the Public Contracts Scotland Portalsuch claims; resolve any claim made pursuant to Article 10; and follow a procedure leading to take all actions necessary in the selection judgment of the Sub-contractor which ensures reasonable competition following principles Stockholder Representative for the accomplishment of equal treatmentthe foregoing) and (iii) to all of the other terms, non-discrimination conditions and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changelimitations in the Escrow Agreement."
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) Purchaser hereby authorizes and directs the Commencement DateSecretary of the Company, or such other person designated by the Service Provider shall enter into a standard form Escrow Agreement Company, to transfer any Shares forfeited in accordance with a reputable Escrow Agent satisfactory Section 2 above from Purchaser to the Purchaser Company.
(b) To insure the availability for delivery of the Shares upon Purchaser’s
(1) This is Demand’s standard vesting formula, which should be adjusted as appropriate. In certain circumstances, it may be appropriate to link vesting to continued “Service Provider” status (rather than employment) in relation order to the software and/or documentation agreed by the Parties that is cause vesting to continue while serving as a director or consultant.
(2) Forfeiture provisions may need to be deposited in escrow (adjusted to accommodate any post-termination vesting that may occur. forfeiture thereof, Purchaser hereby appoints the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis Secretary of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesCompany, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established person designated by the Crown or under statute Company as escrow agent, as its attorney-in-fact to sell, assign and transfer unto the Company, such Shares, if any, forfeited by Purchaser in order substantially to perform any accordance with Section 2 above and shall, upon execution of this Agreement, deliver and deposit with the Secretary of the functions that had previously been performed Company, or such other person designated by the Purchaser; or Company, the share certificates representing any private sector body which substantially performs and all Unvested Shares, together with the functions stock assignment duly endorsed in blank. The share certificates representing the Unvested Shares and the stock assignment shall be held by the Secretary in escrow, pursuant to the Joint Escrow Instructions of the Company and Purchaser attached as Exhibit A hereto, until the first to occur of (i) Purchaser’s forfeiture of such Shares in accordance with Section 2 above, (ii) the date on which such Shares cease to be Unvested Shares, or (iii) this Agreement ceasing to be in effect. Promptly following the date on which any Shares cease to be Unvested Shares, the escrow agent shall deliver to Purchaser the certificate or certificates representing such Shares in the escrow agent’s possession belonging to Purchaser, provided and the escrow agent shall be discharged of all further obligations hereunder; provided, that any the escrow agent shall nevertheless retain such assignationcertificate or certificates if so required pursuant to other restrictions imposed pursuant to this Agreement.
(c) The Company, novation or other disposal its designee, shall not increase be liable for any act it may do or omit to do with respect to holding the burden of the Service Provider’s obligations under this Contract. Any change Shares in escrow and while acting in good faith and in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose exercise of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇judgment.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Restricted Stock Purchase Agreement (Demand Media Inc.)
Escrow. As soon as reasonably practicable following (a) On the Commencement Closing Date, the Service Provider Buyer shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory deliver to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed (as defined in the Escrow Agreement within ten attached as Exhibit A hereto) a certificate (10) days issued in the name of the date Escrow Agent or its nominee) representing (i) the Escrow Shares for the purpose of satisfying the indemnification obligations set forth in Section 8.1 of this Agreement and the purchase price adjustment provisions set forth in Section 1C.1(h) of this Agreement, (ii) the Escrowed Severance Shares for the purpose of satisfying the provisions set forth in Section 1C.1(i) of this Agreement, and (iii) the Reimbursement Shares for the purpose of reimbursing the expenses of the Indemnification Representative in accordance with the terms of the Escrow Agreement. The Escrow Shares, the Escrowed Severance Shares and the Reimbursement Shares shall be held by the Escrow Agent under the Escrow Agreement pursuant to the terms thereof. The Escrow Shares, the Escrowed Severance Shares and the Reimbursement Shares together shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely for the purposes and in accordance with the terms of the Escrow Agreement.
(b) The adoption and approval of this Agreement and the Transactions by the Company Stockholders shall constitute approval of the Escrow Agreement being signed. The Service Provider shall pay and of all of the initial storage feesarrangements relating thereto, including without limitation the placement of the Escrow Shares, the annual fees Escrowed Severance Shares and update fees under the Reimbursement Shares in escrow and the appointment of the Indemnification Representative (as defined in the Escrow Agreement and as designated in Section 1C.3(a) hereof). The Company agrees to describe and disclose the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in arrangements contemplated by this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due Section 1A.5 as required under applicable law to the Service Provider under this Contract subject to: deduction of sums Company Stockholders in respect of which connection with the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence pursuit of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights Company Stockholders’ approval and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity adoption of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; Agreement and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Merger.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Merger Agreement (Inverness Medical Innovations Inc)
Escrow. As soon as reasonably practicable following security for the Commencement Datefaithful performance of the terms of this Agreement, and to ensure the availability for delivery of the Shares, the Service Provider shall enter into Shareholder hereby pledges and will deliver within 10 business days of the date hereof for deposit with the Secretary of the Company, or such other person designated by the Company, as escrow agent in this transaction (“Escrow Agent”), a standard stock assignment duly endorsed (with date and number of shares blank) in substantially the form Escrow Agreement attached hereto as Exhibit A, together with a reputable the certificate or certificates evidencing the Shares. Such documents are to be held by the Escrow Agent satisfactory and delivered by the Escrow Agent pursuant to the Purchaser following instructions of the Company and the Shareholder.
(a) In the event that the Company is required to issue a number of shares of Common Stock in relation excess of the Limit to effect the conversion of the outstanding shares of the Series C Preferred Stock as contemplated by the Certificate of Designations, the Shareholder and the Company hereby irrevocably authorize and direct the Escrow Agent to transfer and deliver to the software and/or documentation agreed by Company, with respect to each conversion of Series C Preferred Stock effected pursuant to the Parties Certificate of Designations, that number of Shares equal to the number of shares of Common Stock issuable upon such conversion of Series C Preferred Stock in excess of the Limit up to a aggregate maximum of 2,000,000 Shares.
(b) In connection with such transfer, the Escrow Agent is directed to (i) date the stock assignment necessary for the transfer in question, (ii) fill in the number of Shares necessary to be deposited in escrow transferred, and (iii) deliver such assignment, together with the “Escrowed Material”). certificate or certificates evidencing the Shares to be transferred, to the Company.
(c) The Service Provider shall Shareholder irrevocably authorizes the Company to deposit the Escrowed Material with the Escrow Agent on any certificates evidencing the basis Shares to be held by the Escrow Agent hereunder and any additions and substitutions to said Shares as defined herein. The Shareholder irrevocably constitutes and appoints the Escrow Agent as the Shareholder’s attorney-in-fact and agent for the term of this Agreement to execute and deliver all instruments and documents and do such other acts and things as may be necessary and appropriate to effectuate this Agreement and to complete any transaction contemplated herein.
(d) Following the terms agreed earlier to occur of (i) the Mandatory Conversion Date (as defined in the Certificate of Designation), and (ii) such time as there are no shares of Series C Preferred Stock outstanding, the Escrow Agent is directed to deliver any Shares not transferred to the Company pursuant to Section 1(b) and Section 4(a) above to the Shareholder within 15 days of such event. If at the time of termination of this Agreement, the Escrow Agent has in the Escrow Agreement within ten Agent’s possession any documents, securities, or other property belonging to the Shareholder, the Escrow Agent shall deliver such property to the Shareholder and be discharged of all further obligations hereunder.
(10e) days of the date The responsibilities of the Escrow Agreement being signedAgent hereunder shall terminate if the Escrow Agent shall cease to be Secretary of the Company or if the Escrow Agent shall resign by written notice to each party. The Service Provider shall pay In the initial storage feesevent of any such termination or resignation, the annual fees and update fees under the Company shall appoint a successor Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordinglyAgent. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6appointment, the Purchaser may assignChief Executive Officer of the Company shall be the Escrow Agent.
(f) It is understood and agreed that should any dispute arise with respect to the delivery, novate ownership, or otherwise dispose right of its rights and obligations under this Contract possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part thereof to: any Government Body; or any other body established of said Shares until such disputes shall have been settled either by the Crown or under statute in order substantially to perform any mutual written agreement of the functions that had previously been performed Company and the Shareholder or by the Purchaser; a final order, decree, or any private sector body which substantially performs the functions judgment of the Purchaserarbitrator, provided that any such assignationif applicable, novation or other disposal shall not increase of a court of competent jurisdiction after the burden of time for appeal has expired and no appeal has been perfected, but the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Escrow Agent shall be available under no duty whatsoever to the Service Provider in the event of respectivelyinstitute or defend such proceedings.
(g) By signing this Agreement, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information Escrow Agent becomes a party hereto only for purposes relating to the performance purpose of executing the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that instructions set out forth in this clause 41.3 (including Section 4 and does not otherwise become a party to this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeAgreement.
Appears in 1 contract
Sources: Share Contribution Agreement (Raser Technologies Inc)
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that If any amount is to be deposited withheld by Buyer as security for the indemnification obligations of the Sellers pursuant to this Article 7, Buyer shall, pursuant to the provisions of Sections 2.5 and 2.6, deliver to the Escrow Agent, as agent of Buyer, the Escrow Amount, in escrow (accordance with the “Escrowed Material”)terms of this Agreement and any Escrow Agreement. The Service Provider shall deposit Sellers acknowledge that the Escrowed Material with amounts held by the Escrow Agent shall be contingent payments eligible to be reported under the installment method pursuant to Code Section 453 and Sellers shall have the right to make any available elections thereunder. The Escrow Agent shall hold the Escrow Amount in accordance with, and subject to, the terms and conditions of any Escrow Agreement, which shall, among other things, provide that any interest that becomes due and payable on the basis Escrow Amount will be paid to Sellers’ Representative, and will not be held by the Escrow Agent, whether or not there are any pending claims for indemnification pursuant to this Article 7. Promptly after the delivery to Sellers’ Representative upon the release of the terms agreed Escrow Amount of any cash balance of the Escrow Amount and funds in the Escrow Agreement within ten (10) days of the date of the Account to which Sellers’ Representative is entitled under any such Escrow Agreement being signed. The Service Provider Agreement, Sellers’ Representative shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence Seller such Seller’s share of such notification the Purchaser is under no obligation remaining cash balances of Sellers’ Representative Reserves that have not been used to vary its arrangements reimburse Sellers’ Representative for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply costs incurred in the performance of its contract their duties as Sellers’ Representative under this Agreement, pro rata in accordance with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeSellers’ respective percentage interests.
Appears in 1 contract
Sources: Stock Purchase Agreement (Walter Investment Management Corp)
Escrow. As soon as reasonably practicable following Notwithstanding any provision of this Agreement to the Commencement Datecontrary, the Service Provider Closing of the Transaction contemplated hereunder shall enter into be completed in escrow, with Michael A. Littman, Esq., acting a▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇e "Escrow Agent"), and shall take place at his office and any funds and all documents delivered in escrow shall be held and disposed of by the Escrow Agent in accordance with the terms and provisions of a standard certain escrow agreement by and among Seller, Buyer and Escrow Agent, in substantially the form attached hereto as Exhibit A (the "Escrow Agreement") and this Agreement. The Escrow Agreement shall be executed and delivered by Seller, Buyer and Escrow Agent (as defined below). In furtherance of the foregoing, the following shall apply:
(a) In lieu of delivering the Purchase Price to Seller as provided for in Section 1.3, Buyer shall deliver or cause to be delivered, at or prior to Closing, to Escrow Agent for deposit into escrow pursuant to the Escrow Agreement, the aggregate amount of $400,000 representing the Purchase Price.
(b) In lieu of delivering to Buyer certificates for the Shares and the original Notes provided for in Section 1.4, Seller shall deliver or cause to be delivered to Escrow Agent, at or prior to Closing, for deposit into escrow pursuant to the Escrow Agreement, certificate(s) registered in the name of the Seller representing the Shares, accompanied by stock powers duly endorsed in blank with a reputable medallion signature guarantee by a national bank, and the original Notes together with a duly executed acceptable assignment. Prior to or at Closing, Seller shall also deliver to Escrow Agent satisfactory to certificates registered in the Purchaser name of the Seller representing an additional 600,000 shares of the Company's common stock ("Escrow Shares"), together with stock powers duly endorsed in relation to the software and/or documentation agreed by the Parties that is blank with medallion signature guarantee, to be deposited in escrow and held in accordance with Section 1.6(c) below.
(c) At such time as all of the “Escrowed Material”). The Service Provider conditions precedent to Closing under Article VII hereof have been satisfied by the respective parties, and no party shall deposit be in breach of any term, warranty, representation, covenant or agreement applicable to it or him, and each party shall have made all deliveries required by each of them under this Agreement, the Escrowed Material with the parties hereto shall provide written notice to Escrow Agent on directing that the basis funds and documents deposited in escrow be disposed of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under accordance with the Escrow Agreement and the Purchaser terms of this Agreement; provided, however, that the Escrow Agent shall pay retain the release feeEscrow Shares in escrow to satisfy any indemnification obligations of Seller under Section 8.2 hereof and under the Assumption Agreement (as defined in Sec- tion 7.3(d) hereof) ("Indemnity Escrow"). Assignation The Service Provider may On the date forty-five (45) days following the Closing Date, to the extent that the Indemnity Escrow has not assign any been and is not the subject of its rightsan indemnification claim under Section 8.2 hereof or under the Assumption Agreement, obligations or interest the Indemnity Escrow shall be released to the Seller.
(d) Buyer agrees to wire transfer a total sum of $30,000 (the "Deposit") to Escrow Agent upon execution and delivery of this Agreement and the Escrow Agreement, with the Deposit to be held in escrow in accordance with the terms and conditions set forth in this Contract or any part of it without Agreement and the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaidEscrow Agreement. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Deposit shall be available refunded and paid to the Service Provider Buyer in the event that the Transaction fails to close for any reason (other than solely as a result of respectivelyBuyer's failure to satisfy the conditions precedent to Closing that are applicable to it under Section 7.2 or as a result of a material breach or inaccuracy of any representation, the bankruptcy warranty, agreement or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations covenant by Buyer under this Contract or any part thereof with the prior consent in writing of the Service ProviderAgreement). The Purchaser may disclose Deposit shall be paid to Seller in the event that the Transaction fails to close solely as a result of Buyer's failure to satisfy the conditions precedent to Closing that are applicable to it under Section 7.2 or solely as a result of a material breach or inaccuracy of any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations representation, warranty, agreement or covenant by Buyer under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Securities Purchase Agreement (Multi Link Telecommunications Inc)
Escrow. As soon (a) At the Closing, as reasonably practicable following provided in Section 2.3(c) hereof, Buyer shall deliver, by wire transfer of immediately available funds, (i) an aggregate amount equal to the Commencement DateAdjustment Escrow Deposit Amount to the Escrow Agent for deposit into a separate escrow account (the “Adjustment Escrow Account”) and (ii) an aggregate amount equal to the Indemnity Escrow Deposit Amount to the Escrow Agent for deposit into a separate escrow account (the “Indemnity Escrow Account”), in each case, established pursuant to the terms of the Escrow Agreement. The Adjustment Escrow Funds shall be maintained separately in the Adjustment Escrow Account. The Indemnity Escrow Funds shall be maintained separately in the Indemnity Escrow Account. Buyer and the Seller shall each be responsible for one half (1/2) of the fees and expenses of the Escrow Agent. Subject to the limitations set forth in this Agreement, nothing in this Section 2.6 shall be construed as limiting claims by a Buyer Indemnified Person for satisfaction of any indemnification or other claims pursuant to Section 8.2 or otherwise, to the amount then held in escrow.
(b) Seller, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Company, and Buyer agree for all Tax purposes that: (i) the right of Seller to the Purchaser Adjustment Escrow Amount and the Indemnity Escrow Amount shall be treated as deferred contingent purchase price eligible for installment sale treatment under Section 453 of the Code and any corresponding provisions of state, local or non-U.S. Law, as appropriate; (ii) interest may be imputed on such amount, as required by Section 483 or 1274 of the Code; (iii) Buyer shall be treated as the owner of the Adjustment Escrow Amount and the Indemnity Escrow Amount and all interest and earnings earned from the investment and reinvestment of the Adjustment Escrow Amount and the Indemnity Escrow Amount, or portion thereof, shall be allocable to Buyer pursuant to Section 468B(g) of the Code and Proposed Treasury Regulation 1.468B-8; and (iv) in relation no event shall the total amount of the Adjustment Escrow Amount or the Indemnity Escrow Amount paid to the software and/or documentation agreed Seller under this Agreement exceed an amount designated by the Parties that is prior to be deposited in escrow Closing.
(c) On the “Escrowed Material”). The Service Provider third (3rd) Business Day after the twelve (12)-month anniversary of the Closing Date, Buyer and Seller shall deposit the Escrowed Material with cause the Escrow Agent on the basis of (in accordance with the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall Agreement) to pay the initial storage fees(by wire transfer of immediately available funds) to such account(s) designated by Seller, the annual fees amount of any remaining Indemnity Escrow Funds that are not claimed by Buyer, on or prior to the twelve (12)-month anniversary of the Closing Date, to be owed to a Buyer Indemnified Person, together with any interest earned on any such amount, for distribution to Seller, all as may be provided in and update fees under pursuant to the terms of the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following security for an Employee Shareholder's or a Restricted Stock Grant Recipient's faithful performance of this Agreement, that Employee Shareholder or Restricted Stock Grant Recipient agrees, immediately upon receipt of the Commencement Datestock certificate(s) evidencing the Omneon Shares, to deliver such certificate(s), together with the Service Provider shall enter into a standard form Escrow Agreement Stock Powers and Spouse Consents executed by that Employee Shareholder or Restricted Stock Grant Recipient and by that Employee Shareholder's or Restricted Stock Grant Recipient's spouse, if any (with a reputable Escrow Agent satisfactory the date, transferee, stock certificate number and number of Omneon Shares left blank), in the forms of Exhibit G and H hereto, to the Purchaser Secretary of Omneon or other designee of Omneon (the "Escrow Holder"), who is hereby appointed to hold such certificate(s) and Stock Powers in relation escrow and to take all such actions and to effectuate all such transfers and/or releases of such Omneon Shares as are in accordance with the terms of this Agreement. Escrow Holder will act solely for Omneon as its agent and not as a fiduciary. Each Employee Shareholder, each Restricted Stock Grant Recipient and Omneon agree that Escrow Holder will not be liable to any party to this Agreement (or to any other party) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of Escrow Holder under this Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to be genuine and may rely on the advice of counsel and obey any order of any court with respect to the software and/or documentation agreed transactions contemplated by the Parties that is to be deposited in escrow (the “Escrowed Material”)this Agreement. The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to Omneon Shares will be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of released from escrow upon termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Forfeiture Contingency.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
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Escrow. As soon as reasonably practicable following The Purchaser Indemnitees right to indemnification from a Stockholder pursuant to this Article 6 shall be satisfied out of such Stockholder’s Pro Rata Portion of the Commencement Escrow Amount before the Purchaser Indemnitees may seek, if permitted to do so under this Agreement, indemnification directly from such Stockholder. Six months after the Closing Date (the “Initial Release Date”), the Escrow Agent shall release to each Stockholder his or her Pro Rata Portion of an aggregate amount (the “Initial Release Amount”) equal to $650,000 less (i) all amounts utilized to pay any Purchaser Indemnitee for any indemnification claims on or prior to such date, and (ii) an amount equal to the amount of claims for indemnification under this Article 6 asserted prior to Initial Release Date but not yet resolved; provided that in no event shall the Initial Release Amount be less than $0. On the first anniversary of the Closing Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory shall release to each Stockholder his or her Pro Rata Portion of the remaining portion of the Escrow Amount (to the extent not utilized to pay any Purchaser in relation Indemnitee for any indemnification claim), except that the Escrow Agent shall retain an amount (up to the software and/or documentation agreed total amount then held by the Parties that is Escrow Agent) equal to be deposited in escrow the amount of claims for indemnification under this Article 6 asserted prior to such first anniversary but not yet resolved (the “Escrowed MaterialUnresolved Claims”). The Service Provider Escrow Amount retained for Unresolved Claims shall deposit the Escrowed Material with be released by the Escrow Agent on (to the basis extent not utilized to pay any Purchaser Indemnitees for any such claims resolved in favor of any such Purchaser Indemnitees) upon their resolution in accordance with this Article 6 and the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
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Escrow. As soon as reasonably practicable following On or before each of the Commencement DateClosing Dates, (a) the Service Provider ------ Company shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory execute and deliver to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow agent (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the "Escrow Agent on the basis of the terms agreed Agent") identified in the Escrow Agreement within ten attached hereto as Exhibit D (10the "Escrow Agreement") days all applicable agreements, documents, instruments and writings required pursuant to (i) Section 4.3 in regard to the First Tranche Closing (collectively, the "First Tranche Company Closing Documents") or (ii) Section 4.4 in regard to the Second Tranche Closing (collectively, the "Second Tranche Company Closing Documents" and together with the First Tranche Company Closing Documents, the "Company Closing Documents"), to be delivered by the Company including, without limitation, certificates for the number and series of Preferred Shares set forth opposite each Purchaser's name on Exhibit A or Exhibit AA, as applicable, registered in such Purchaser's name and such Purchaser's Warrants and (b) each of the date Purchasers shall pay by wire transfer of immediately available funds into escrow in accordance with the Escrow Agreement such Purchaser's Purchase Price and execute and deliver all applicable agreements, documents, instruments and writings required pursuant to (i) Section 4.1 in regard to the First Tranche Closing (collectively and together with such Purchaser's First Tranche Purchase Price, the "First Tranche Purchaser's Closing Documents") or (ii) Section 4.2 in regard to the Second Tranche Closing (collectively, and together with such Purchaser's Second Tranche Purchase Price, the "Second Tranche Purchaser's Closing Documents" and together with the First Tranche Purchaser's Closing Documents, and the Company Closing Documents, the "Closing Documents"), to be delivered by such Purchaser. In regard to the First Tranche Closing, the Escrow Agent shall give notice (an "Escrow Agent Notice") to the parties hereto when the Escrow Agent has received all of the First Tranche Company Closing Documents and First Tranche Purchaser's Closing Documents and shall deliver the First Tranche Company Closing Documents to the Purchasers and wire transfer the funds constituting the First Tranche Purchase Prices and deliver the other First Tranche Purchaser's Closing Documents to the Company pursuant to the terms of the Escrow Agreement being signedAgreement. In regard to the Second Tranche Closing, the Escrow Agent shall give an Escrow Agent Notice to the parties hereto when the Escrow Agent has received all the Second Tranche Company Closing Documents and Second Tranche Purchaser's Closing Documents. The Service Provider Company shall pay then give notice (the initial storage fees, the annual fees and update fees under "Company Closing Notice") to the Escrow Agreement Agent and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent Purchasers when all of the Purchaser. Notwithstanding clause 39.1, conditions set forth in Section 4.2 have been satisfied or waived and that it is ready to file the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights Registration Statement as soon as is practicable after receipt of the Purchaser under this Contract in relation Closing Notice (defined below) of each Purchaser. Each Purchaser shall give notice (each a "Purchaser Closing Notice") to the recovery Company and the Escrow Agent that all of sums due but unpaidthe conditions set forth in Section 4.4 have been satisfied or waived except for Section 4.4(l). The Service Provider must notify or ensure that any Assignee notifies Upon the Purchaser filing of any variations the Registration Statement, the Company shall give notice (the "Filing Notice") to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; Escrow Agent and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In Purchasers that such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that filing has occurred. Sub-Contracting The Purchaser approves As soon thereafter as is practicable on the appointment Second Tranche Closing Date, the Escrow Agent shall deliver the Second Tranche Company Closing Documents to the Purchasers and wire transfer the funds constituting the Second Tranche Purchase Prices and deliver the other Second Tranche Purchaser's Closing Documents to the Company pursuant to the terms and conditions of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Escrow Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Series B Convertible Preferred Stock Purchase Agreement (Net Value Holdings Inc)
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to shall hold the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇ Money, together with all interest earned thereon, in its interest bearing escrow account, in accordance with the following:
(a) Escrow Agent shall hold the ▇▇▇▇▇▇▇ Money, together with all interest earned thereon, in Escrow Agent's escrow account, and shall cause the ▇▇▇▇▇▇▇ Money to earn interest at then prevailing insured money market rates on deposits of similar size. Escrow Agent shall have no liability for any fluctuations in the interest rate paid in respect of the ▇▇▇▇▇▇▇ Money, and is not a guarantor thereof.
(b) If Escrow Agent receives a written notice signed by both Seller and Purchaser stating that the Closing has occurred and that Seller is entitled to receive the ▇▇▇.▇▇▇▇ Money, Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon to Seller. If Escrow Agent receives a written notice signed by both Seller and Purchaser that this Agreement has been terminated or canceled, Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money, together with the interest thereon, as directed therein.
(c) If Escrow Agent receives a written request signed by Purchaser or Seller (the "NOTICING PARTY") stating that this Agreement has been canceled or terminated and awarded following a fair, open, transparent and competitive process proportionate that the Noticing Party is entitled to the nature and value of ▇▇▇▇▇▇▇ Money, Credit, or that the contract; includes provisions requiring other party hereto (the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub"NON-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply NOTICING PARTY") has defaulted in the performance of its contract obligations hereunder, Escrow Agent shall mail (by certified mail, return receipt requested) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the ▇▇▇▇▇▇▇ Money by written notice of objection delivered to and received by Escrow Agent not more than ten (10) Business Days after the date of Escrow Agent's mailing of such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a written notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the ▇▇▇▇▇▇▇ Money, together with legal obligations in the fields interest earned thereon, to the Noticing Party. If Escrow Agent shall have received a written notice of environmentalobjection within the time herein prescribed, social Escrow Agent shall not comply with any requests or employment law demands on it and shall continue to hold the ▇▇▇▇▇▇▇ Money, together with any interest earned thereon, until Escrow Agent receives either (i) a written notice signed by both Seller and Purchaser stating who is entitled to the ▇▇▇▇▇▇▇ Money (and interest) or if any (ii) a final order of a court of competent jurisdiction directing disbursement of the termination ▇▇▇▇▇▇▇ Money (and interest) in a specific manner, in either of which events specified Escrow Agent shall then disburse the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon, in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 accordance with such notice or order. Escrow Agent shall not be or become liable in any Sub-contract which way or to any person for its refusal to comply with any such requests or demands until and unless it awardshas received a direction of the nature described in subdivision (i) or (ii) above.
(d) Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. Where requested by the All mailings and notices from Escrow Agent to Seller and/or Purchaser, or from Seller and/or Purchaser to Escrow Agent, provided for in this PARAGRAPH 14 shall be addressed to the party to receive such notice at its notice address set forth in PARAGRAPH 12 above (with copies to be similarly sent to the additional persons therein indicated), but the provisions of PARAGRAPH 12 relating to the manner of giving notices and the effective dates thereof shall have no application to the provisions of this PARAGRAPH 14.
(e) Notwithstanding the foregoing, if Escrow Agent shall have received a written notice of objection as provided for in PARAGRAPH 14 (C) above within the time therein prescribed, or shall have received at any time before actual disbursement of the ▇▇▇▇▇▇▇ Money a written notice signed by either Seller or Purchaser disputing entitlement to the ▇▇▇▇▇▇▇ Money or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the parties hereto over entitlement to the ▇▇▇▇▇▇▇ Money (whether or not litigation has been instituted), Escrow Agent shall have the right, upon written notice to both Seller and Purchaser, (i) to deposit the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon, with the Clerk of the Court in which any litigation is pending and/or (ii) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the ▇▇▇▇▇▇▇ Money, together with the interest earned thereon, with a court of competent jurisdiction and the commencement of an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct.
(f) Escrow Agent is acting hereunder without charge as an accommodation to Purchaser and Seller, it being understood and agreed that Escrow Agent shall not be liable for any error in judgment or any act done or omitted by it in good faith or pursuant to court order, or for any mistake of fact or law. Escrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention party has been authorized to do so. Escrow Agent shall not be liable for, and Purchaser and Seller hereby jointly and severally agree to indemnify Escrow Agent against, any loss, liability or expense, including reasonable attorney's fees (either paid to retained attorneys or, representing the fair value of legal services rendered by Escrow Agent to itself), arising out of any dispute under this Agreement, including the cost and expense of defending itself against any claim arising hereunder.
(g) Escrow Agent may act or refrain from acting in respect of any matter referred to in this Agreement in full reliance upon and with the advice of counsel selected by it (including any member of its firm) and shall be fully protected in so in at least one trade journal and acting or refraining from acting upon the Public Contracts Scotland Portal; and follow a procedure leading to the selection advice of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changecounsel.
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) Simultaneously with the Commencement Dateexecution hereof, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that Buyer or Acquisition is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material depositing with the Escrow Agent on the basis a number of shares of Buyer Preferred Stock equal to 10% of the Merger Consideration, as described in Section 1.3 hereof, including any amounts to be deposited into escrow pursuant to the last sentence of Section 1.6(a) hereof (collectively, the "Escrowed Shares"), for the purpose of satisfying the indemnification obligations of the Stockholders set forth in Article VI of this Agreement. The Escrowed Shares shall be held by the Escrow Agent under and pursuant to the terms agreed of an Escrow Agreement, in the form of Exhibit A, by and among the Buyer, the Escrow Agent, the Indemnification --------- Representative (each as defined herein) and each of the Stockholders (the "Escrow Agreement"). The Escrowed Shares shall remain in the Escrow Agreement within ten for one (101) days year following the Effective Time in order to satisfy the Stockholders' indemnification obligations under Article VI hereof. During such one (1) year period, all cash dividends, if any, paid with respect to the Escrowed Shares shall be the property of, and shall be delivered to, the Stockholders, each in accordance with their respective ownership interests, and each of the date Stockholders shall have the sole power to exercise all voting rights pertaining to their pro rata portion of Escrowed Shares. All shares issued in respect of the Escrowed Shares (including, without limitation, shares issued in connection with stock dividends, stock splits, recapitalizations, reorganizations or similar transactions affecting the Buyer Preferred Stock) shall, upon issuance, be deposited in the Escrow, held subject to the terms and conditions of the Escrow Agreement being signed. and treated for all purposes as Escrowed Shares.
(b) The Service Provider adoption of this Agreement and the approval of the Merger by the Stockholders shall pay constitute approval by the initial storage fees, the annual fees and update fees under Stockholders of the Escrow Agreement and the Purchaser shall pay appointment of Centura Bank as the release fee. Assignation The Service Provider may not assign any escrow agent (the "Escrow Agent") thereunder and of its rights, obligations or interest in this Contract or any part of it without the prior written consent all of the Purchaser. Notwithstanding clause 39.1arrangements relating thereto, including, without limitation, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums placement in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights escrow of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights Escrowed Shares and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇ & ▇▇▇▇▇▇ Group, Inc., a New York corporation ("▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇"), to serve as the Indemnification Representative (the "Indemnification Representative") and awarded following a fair, open, transparent and competitive process proportionate to act as the nature and value representative of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation Stockholders for purposes of the equivalent party as the Service Provider Escrow Agreement and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changethis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Sciquest Com Inc)
Escrow. As soon as reasonably practicable following the Commencement Date(a) Upon receipt thereof, the Service Provider Winter Harbor shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser deposit in relation to the software and/or documentation agreed by the Parties that is to be deposited in an interest bearing escrow (the “Escrowed Material”"Escrow") the Purchase Price and those securities issued to Winter Harbor pursuant to the Securities Exchange Agreement (such securities and any additional or other shares or securities or property into which such securities are converted or for which such securities are exchanged including through any reorganization, recapitalization, reclassification, stock dividend, stock split or reverse stock split, or other transaction being the "Issued Securities"). The Service Provider Escrow shall deposit terminate, and the Escrowed Material remaining contents thereof transferred to Winter Harbor, free and clear of any claim, liens, encumbrances by Purchaser or any Purchaser Indemnified Party, upon the first occurrence of an Escrow Termination Event. An Escrow Termination Event shall have occurred upon the earlier of (i) the end of the 540th day after the date of this Agreement, if during such period no Red Cube AG Claim premised upon the Red Cube AG Securities Purchase Agreement has been initiated (other than a claim in connection with the Escrow Agent on mediation currently pending before the basis American Arbitration Association), and (ii) the final resolution or settlement of all claims brought against Winter Harbor or Purchaser before the 540th day after the date of this Agreement that could result in potentially indemnifiable losses related to any Red Cube AG Claim.
(b) Winter Harbor and Purchaser acknowledge that as a result of the terms agreed transaction contemplated by this Agreement, there is a risk that Purchaser or a Purchaser Indemnified Party may be exposed to (i) Losses resulting from a determination and order by a court of competent jurisdiction, arbitral panel or other adjudicatory entity that, pursuant to the Red Cube AG Securities Purchase Agreement, Red Cube AG is entitled to the transfer of ownership from Purchaser of all or substantially all the Covered Securities (a "Specific Performance Claim") or (ii) Losses premised upon the Red Cube AG Securities Purchase Agreement and which arise from a Red Cube AG Claim which is not a Specific Performance Claim (a "Red Cube Damage Claim"). If, prior to the occurrence of an Escrow Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Specific Performance Claim or a claim under Section 6.1(a) above, then Winter Harbor shall, solely out of and up to a maximum of the Issued Securities and Purchase Price deposited in the Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of such Specific Performance Claim or claim under Section 6.1(a) above. If, prior to the occurrence of an Escrow Agreement within Termination Event, Purchaser or a Purchaser Indemnified Person gives notice of a Red Cube Damage Claim, then Winter Harbor shall, solely out of and up to a maximum of the Issued Securities deposited in the Escrow, indemnify and hold harmless Purchaser and Purchaser Indemnified Person from all Losses arising out of such Red Cube Damage Claim. Winter Harbor's total aggregate liability for all Specific Performance Claims and all claims under Section 6.1(a) above shall not exceed the loss of its right to the Issued Securities and Purchase Price deposited in the Escrow. Winter Harbor's total aggregate liability for all Red Cube Damage Claims shall not exceed the loss of its right to the Issued Securities deposited in the Escrow.
(c) All Losses properly due a Purchaser or Purchaser Indemnified Person pursuant to this Section 6.3, Section 6.1 and Section 6.2 (including, without limitation, reimbursement of attorneys' or other professional fees arising out of article VI of this Agreement) shall first be satisfied by transferring to Purchaser or the applicable Purchaser Indemnified Party a number of Issued Securities determined by dividing the applicable Loss by the then current market price (as calculated by the average closing price for I-Link common stock for the most recent ten (10) days upon which such securities traded) of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordinglysuch shares. In the absence event that the total number of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change Issued Securities then deposited in the legal status of Escrow is insufficient to satisfy the Purchaser applicable Losses, and solely where such that it ceases to be Losses arise exclusively and solely from a Government Body shall notRed Cube Specific Performance Claim or from a claim under Section 6.1(a), subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shortfall shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due satisfied by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider transferring to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes or applicable Purchaser Indemnified Person, a portion, up to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection maximum of the Sub-contractor which ensures reasonable competition following principles total Purchase Price, of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changethe cash proceeds then deposited in the Escrow.
Appears in 1 contract
Escrow. As soon as reasonably practicable following (i) Subject to subsection 4.1(b)(ii), Purchaser and Seller have agreed that, to secure the Commencement Dateindemnification obligations of Seller pursuant to Article XI, five million dollars ($5,000,000) of the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow Closing Payment (the “Escrowed MaterialEscrow and Blocked Account Amount”) will be deposited at the Closing with Union Bank of California, N.A., as escrow agent (the “Escrow Agent”). The Service Provider , and at the Closing, Purchaser, Seller and the Escrow Agent shall execute and deliver an escrow agreement in substantially the form attached hereto as Exhibit A (the “First Form Escrow Agreement”) pursuant to which Purchaser shall deposit the Escrowed Material entire Escrow and Blocked Account Amount with the Escrow Agent.
(ii) After the execution and delivery of this Agreement, Purchaser and Seller shall negotiate in good faith to attempt to establish an arrangement whereby Seller would be afforded additional investment flexibility with respect to four million dollars ($4,000,000) of the Escrow and Blocked Account Amount while Purchaser would be afforded security for the indemnification obligations of Seller pursuant to Article XI substantially similar to that provided by the First Form Escrow Agreement. If prior to the date that is five (5) business days before the Closing, Seller and Purchaser have agreed to such arrangement (the “Alternative Agreement”), then at the Closing, (A) Purchaser, Seller and the Escrow Agent shall execute and deliver an escrow agreement in substantially in the form attached hereto as Exhibit B (the “Second Form Escrow Agreement”), pursuant to which Purchaser shall deposit one million dollars ($1,000,000) of the Escrow and Blocked Account Amount with the Escrow Agent on and (B) Purchaser, Seller and any other party thereto shall execute and deliver the basis of the terms agreed in the Escrow Alternative Agreement within ten pursuant to which Purchaser shall deposit four million dollars (10$4,000,000) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Blocked Account Amount.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Asset Purchase Agreement (Gametech International Inc)
Escrow. As soon Unless Purchaser is a Section 2.1(c)(iii) Purchaser, concurrent with the signing hereof, (i) each Purchaser has (A) deposited the Subscription Amount with American Stock Transfer & Trust Company, LLC, as reasonably practicable following the Commencement DateEscrow Agent (“AST” and, collectively with any Custodians, the Service Provider shall enter into a standard form "Escrow Agent”), pursuant to that certain Escrow Agreement (in the form attached hereto as Exhibit I) between the Company and AST (as it may be amended or otherwise modified from time to time, the “AST Escrow Agreement”, and collectively with any Custodian Agreements, the "Escrow Agreement”) or (B) segregated cash equal to the Subscription Amount in an account with a reputable Escrow Agent satisfactory custodian (a “Custodian”) of funds held on behalf of an “investment company” under the Investment Company Act of 1940, as amended, pursuant to binding escrow instructions (“Custodian Agreements”) for release of such funds by such Custodian to the Purchaser Company, at the direction of the Company, upon the satisfaction of conditions set forth in relation the AST Escrow Agreement, and (ii) the Company has issued instructions to the software and/or documentation agreed by Transfer Agent authorizing the Parties issuance, in book-entry form, of the number of Preferred Shares specified on such Purchaser’s signature page hereto (or, if the Company and such Purchaser shall have agreed, as indicated on such Purchaser’s signature page hereto, that is such Purchaser will receive Preferred Shares in certificated form, then the Company shall instead instruct the Transfer Agent to be deposited issue such specified Preferred Shares in escrow certificated form (the “Escrowed Material"Stock Certificates”). The Service Provider shall deposit , or as otherwise set forth on the Escrowed Material Stock Certificate Questionnaire included as Exhibit C-2 hereto) concurrent with the Escrow Agent on the basis Agent’s release of the terms agreed in Subscription Amount to the Company pursuant to the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Securities Purchase Agreement (Oriental Financial Group Inc)
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment provided a Note for exercise of the Shares, as security for Purchaser's faithful performance of this Exercise Agreement, Purchaser agrees, immediately upon receipt of the stock certificate(s) evidencing the Shares, to deliver such certificate(s), together with the Stock Powers executed by Purchaser and by Purchaser's spouse, if any (with the date and number of Shares left blank), to the Service Provider Secretary of the Company or other designee of the Company (the "ESCROW HOLDER"), who is hereby appointed to hold such certificate(s) and Stock Powers in respect escrow and to take all such actions and to effectuate all such transfers and/or releases of Services such Shares as are in accordance with the terms of this Exercise Agreement. Purchaser and the Sub-contractor’s invoice relates Company agree that Escrow Holder will not be liable to such Services thenany party to this Exercise Agreement (or to any other party) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in carrying out the duties of Escrow Holder under this Exercise Agreement. Escrow Holder may rely upon any letter, notice or other document executed with any signature purported to that extent, be genuine and may rely on the invoice must be treated as valid and, provided the Service Provider is not exercising a right advice of retention or set-off in counsel and obey any order of any court with respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made transactions contemplated by this Exercise Agreement. The Shares will remain in escrow so long as they are subject to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoicePledge Agreement. 7. TAX CONSEQUENCES. PURCHASER UNDERSTANDS THAT PURCHASER MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF PURCHASER'S PURCHASE OR DISPOSITION OF THE SHARES. PURCHASER REPRESENTS: (a) THAT PURCHASER HAS CONSULTED WITH ANY TAX ADVISOR THAT PURCHASER DEEMS ADVISABLE IN CONNECTION WITH THE PURCHASE OR DISPOSITION OF THE SHARES AND (b) THAT PURCHASER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE. IN ADDITION TO THE FOREGOING, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇THE COMPANY SHALL HAVE NO LIABILITY TO ANY PARTICIPANT OR ANY OTHER PERSON IF AN OPTION DESIGNATED AS AN INCENTIVE STOCK OPTION FAILS TO QUALIFY AS SUCH AT ANY TIME OR IF AN OPTION IS DETERMINED TO CONSTITUTE "NONQUALIFIED DEFERRED COMPENSATION" WITHIN THE MEANING OF SECTION 409A OF THE CODE AND THE TERMS OF SUCH OPTION DO NOT SATISFY THE ADDITIONAL CONDITIONS APPLICABLE TO NONQUALIFIED DEFERRED COMPENSATION UNDER SECTION 409A OF THE CODE AND SECTION 7 OF THE PLAN.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Stock Option Exercise Agreement (Gulfwest Energy Inc)
Escrow. As soon as reasonably practicable following (a) At the Commencement DateClosing, the Service Provider Parent shall enter into withhold from the shares of Parent Common Stock that would otherwise be issued in the Merger to each holder of Company Common Stock and Company Preferred Stock (the "COMPANY STOCKHOLDERS") pursuant to Section 2.1(a), a standard form Escrow Agreement with a reputable Escrow Agent satisfactory number of such shares of Parent Common Stock that is equal to fifteen percent (15%) of the aggregate number of shares of Parent Common Stock included in the Merger Consideration, and the number of such shares of Parent Common Stock withheld from each Company Stockholder shall be PRO RATA and shall be rounded down to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence nearest whole number of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose shares (such withheld shares of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies Parent Common Stock being hereinafter referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available "ESCROW SHARES"). The Parent will deliver certificates representing such Escrow Shares to an institution reasonably acceptable to the Service Provider Company, as escrow agent (the "ESCROW AGENT"), and, at the time prescribed in the event of respectivelySection 2.2(b), the bankruptcy or insolvencyCompany Stockholders will deliver to the Escrow Agent related stock transfer powers executed by the applicable Company Stockholders (with medallion signature guarantees if requested by the Escrow Agent), or Default of to be held by the Transferee; and Escrow Agent as security for the Transferee shall only be able to assign, novate or otherwise dispose of its rights and Company Stockholders' indemnification obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates Article VIII and pursuant to the performance provisions of an escrow agreement in substantially the Service Provider’s obligations under this Contract. In such circumstances form attached hereto as Exhibit C (the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors"ESCROW AGREEMENT") in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due entered into at the Closing by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extentParent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser Escrow Agent and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇ ▇▇▇▇▇▇▇▇, as the representative of the Company Stockholders (the "ESCROW REPRESENTATIVE") under the Escrow Agreement and as the attorney-in-fact and agent for and on behalf of each Company Stockholder as provided in the Escrow Agreement. The Escrow Shares shall be withheld from each Company Stockholder PRO RATA in the same proportion as the total number of shares of Parent Common Stock issuable to such stockholder under Section 2.1(a) bears to the total number of shares of Parent Common Stock issued to all Company Stockholders under Section 2.1(a). The Escrow Shares shall be represented by stock certificates issued in the names of each of the Company Stockholders in proportion to their respective interests in the Escrow Shares and shall be held by the Escrow Agent during that time period commencing on the Effective Time and ending on the first anniversary of the Effective Time or on such earlier or later date as may be provided in the Escrow Agreement (such time period being hereafter called the "ESCROW PERIOD").
(b) By their approval of the Merger, the Company Stockholders will be conclusively deemed to have consented to, approved and agreed to be bound by: (i) the indemnification provisions of Article VIII; (ii) the Escrow Agreement; (iii) the appointment of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇▇ as the Escrow Representative; and (iv) the taking by the Escrow Representative of any and awarded following a fairall actions and the making of any decisions required or permitted to be taken by the Escrow Representative under this Agreement and/or the Escrow Agreement, open, transparent and competitive process proportionate including the exercise of the power to: (I) authorize delivery to the nature Parent of Escrow Shares in satisfaction of indemnity claims by the Parent or any other Indemnified Person pursuant to Article VIII and/or the Escrow Agreement; (II) agree to, negotiate, enter into settlements and value compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (III) arbitrate, resolve, settle or compromise any claim for indemnity made pursuant to Article VIII; and (IV) take all actions necessary in the judgment of the contract; includes provisions requiring Escrow Representative for the conduct accomplishment of audits; the foregoing. The Escrow Representative will have authority and is power to act on behalf of each Company Stockholder with respect to the Escrow Agreement and the disposition, settlement or other handling of all claims under Article VIII hereof or governed by the Escrow Agreement, and all rights or obligations arising under the Escrow Agreement so long as all Company Stockholders are treated in the same terms as that set out manner. The Company Stockholders will be bound by all actions taken and documents executed by the Escrow Representative in connection with the Escrow Agreement, and the Parent will be entitled to rely on any action or decision of the Escrow Representative. In performing the functions specified in this clause 41.3 Agreement and the Escrow Agreement, the Escrow Representative will not be liable to any Company Stockholder in the absence of gross negligence or willful misconduct on the part of the Escrow Representative. Any loss, liability or expense reasonably incurred without gross negligence or willful misconduct by the Escrow Representative in connection with actions taken by the Escrow Representative pursuant to the terms of the Escrow Agreement (including this clause 41.3.5 subject only to modification to refer the hiring of legal counsel and the incurring of legal fees and costs) will be paid by the Company Stockholders to the correct designation Escrow Representative PRO RATA in proportion to their respective percentage interests in the Escrow Shares. In performing the functions specified in this Agreement and the Escrow Agreement, the Escrow Representative shall have reasonable access to information about the Parent and the reasonable assistance of the equivalent party as the Service Provider Parent's officers and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmentalemployees; PROVIDED, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes Escrow Representative shall treat confidentiality and not disclose any nonpublic information from or about the Parent or any Parent Subsidiary to any person (except on a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider need to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes know basis to enter into a Sub-contract it must: advertise its intention individuals who agree to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that treat such procedure is accessible by small and medium enterprises. Changeinformation confidentially).
Appears in 1 contract
Escrow. As soon as reasonably practicable following security for Purchaser's faithful performance of this Agreement, Purchaser agrees, immediately upon receipt of the Commencement Date, stock certificate(s) evidencing Unvested Shares subject to the Service Provider shall enter into a standard form Escrow Agreement Repurchase Option or Shares purchased with a reputable Escrow Agent satisfactory promissory note, to deliver such certificate(s), together with the Stock Powers executed by Purchaser and by Purchaser's spouse, if any (with the date and number of Shares left blank), to the Secretary of the Company or other designee of the Company ("Escrow Holder"), who is hereby appointed to hold such certificate(s) and Stock Powers in escrow and to take all such actions and to effectuate all such transfers and/or releases of such Shares as are in accordance with the terms of this Agreement. Purchaser and the Company agree that Escrow Holder will not be liable to any party to this Exercise Agreement (or to any other party) for any actions or omissions unless Escrow Holder is grossly negligent or intentionally fraudulent in relation carrying out the duties of Escrow Holder under this Exercise Agreement. Escrow Holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may rely on the advice of counsel and obey any order of any court with respect to the software and/or documentation agreed transactions contemplated by the Parties that is to be deposited in escrow (the “Escrowed Material”)this Agreement. The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to Shares will be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of released from escrow upon termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectivelyRepurchase Option for Unvested Shares [NOTE FOR PREPARATION OF SPECIFIC EXERCISE AGREEMENT: ADD IF SHARES ARE PLEDGED:] [PROVIDED, the bankruptcy or insolvencyHOWEVER, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇THAT THE SHARES WILL BE RETAINED IN ESCROW SO LONG AS THEY ARE SUBJECT TO THE PLEDGE AGREEMENT].▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Stock Option Exercise Agreement (Medical Science Systems Inc)
Escrow. As soon as reasonably practicable following Supplier shall, promptly after the Commencement Effective Date, the Service Provider shall enter deposit into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed MaterialEscrow”) the Source Code for any Software embedded in, or used in connection with the development of, the Products (including the back-end), in each case owned by Supplier or its Subsidiaries, along with any related documentation and materials (including Technical Manufacturing Information and Product Information) and any Software comprised in the ▇▇▇▇ IP (collectively, the “Escrow Materials”). The Service Provider shall deposit the Escrowed Material Supplier will, from time to time, provide Customer with the Escrow Agent on the basis a list of the terms agreed all third-party Software embedded in the Escrow Agreement Materials and required to use the Escrow Materials. Supplier agrees, during the term of this Agreement, to deposit into such Escrows (on a quarterly basis and for every major new release or similar item, in each case within ten (10) days thereof) any updates to the Escrow Materials. The agreed escrow agreement for any Escrow Materials in the ▇▇▇▇ Catalog Products is set forth on Schedule 9.13 hereof. The Parties agree that the Escrow agreement for any Escrow Materials in the Verisure Developed Products will be entered into upon the completion of the date first SOW entered into by the Parties and will have terms substantially similar to the agreement on Schedule 9.13. The Escrow agreements will be deemed “supplementary to” this Agreement for purposes of bankruptcy law. The conditions for release of Escrow shall be limited to the occurrence of a Late Stability Triggering Event or, in respect of Verisure Developed Products, the occurrence of a Supply [***] = Certain Confidential Information Omitted 48 Triggering Event or the termination of this Agreement (other than a termination under Section 11.03(d); and provided, further, that Customer’s access to any ▇▇▇▇ IP in the ▇▇▇▇ ▇▇▇▇▇ Services applies only in respect of a Late Stability Triggering Event). Customer will pay for the reasonable and documented fees of the Escrow Agreement being signed. The Service Provider shall pay agent (reasonably acceptable to Customer) and for the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any expense of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign one employee solely dedicated to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Providerfulfilling Customer’s obligations under this Contract. Any change in the legal status of the Purchaser Section 9.13 (provided, Supplier shall have received Customer’s prior written consent for any such that it ceases to be a Government Body shall notfees and or expenses) (collectively, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “TransfereeEscrow Costs”): ). During the rights period in which Supplier is in material breach of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without Section 9.13 or the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider separate escrow agreement, Supplier shall be responsible liable for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Escrow Costs.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable 23.1 Escrow Agent satisfactory to shall hold the Purchaser Downpayment, together with all interest earned thereon, in relation to its interest bearing escrow account, or the software and/or documentation agreed by Downpayment Letter of Credit, as the Parties that is to be deposited case may be, in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material accordance with the following:
(a) Escrow Agent shall hold the Downpayment, together with all interest earned thereon, in Escrow Agent's escrow account at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and shall cause the Downpayment to earn interest at ▇▇ ▇▇▇▇▇▇ Chase's then prevailing insured money market rates on deposits of similar size. Escrow Agent shall have no liability for any fluctuations in the interest rate paid by ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesDownpayment, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body guarantor thereof.
(b) If, on or if there before the date which is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from prior to expiration of the receipt Downpayment Letter of Credit, SLGOP has not delivered an extension thereof or a valid invoice as defined replacement letter of credit in the form of the Downpayment Letter of Credit, Escrow Agent shall be entitled to deliver the Downpayment Letter of Credit to Transferor who shall be entitled to draw on the same, provided that all proceeds thereof shall be paid by the Sub-contract requirements issuing bank by Wire Transferred Funds to Escrow Agent's account described in clause (a) above, and provides that, where thereafter such proceeds shall be held as the Purchaser has made payment to Downpayment in accordance with the Service Provider in respect terms of Services this Agreement.
23.1.2 If Escrow Agent receives a written notice signed by both Transferor and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor SLGOP stating that the Sub-contract forms part of a larger contract for the benefit of the Purchaser Closing has occurred and that should Transferor is entitled to receive the Sub-contractor have any difficulty in securing Downpayment or that SLGOP is entitled to receive the timely payment Downpayment Letter of an invoiceCredit, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor case may be, Escrow Agent shall deliver the Downpayment, together with the interest earned thereon to Transferor, or the Downpayment Letter of Credit to SLGOP, as the case may be. The Service Provider If Escrow Agent receives a written notice signed by both Transferor and SLGOP that this Agreement has been terminated or canceled, Escrow Agent shall also include in every Subdeliver the Downpayment, together with the interest thereon, or the Downpayment Letter of Credit, as the case may be, as directed therein.
23.1.3 If Escrow Agent receives a written request signed by SLGOP or Transferor (the "Noticing Party") stating that this Agreement has been canceled or terminated and that the Noticing Party is entitled to the Downpayment, or the Downpayment Letter of Credit, as the case may be, or that the other party hereto (the "Non-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply Noticing Party") has defaulted in the performance of its contract obligations hereunder, Escrow Agent shall deliver (by hand or nationally recognized overnight courier) a copy of such request to the Non-Noticing Party. The Non-Noticing Party shall have the right to object to such request for the Downpayment by written notice of objection delivered to and received by Escrow Agent ten (10) Business Days after the date of Escrow Agent's mailing of such copy to the Non-Noticing Party, but not thereafter. If Escrow Agent shall not have so received a written notice of objection from the Non-Noticing Party, Escrow Agent shall deliver the Downpayment, together with legal obligations in the fields interest earned thereon, or the Downpayment Letter of environmentalCredit, social as the case may be, to the Noticing Party. If Escrow Agent shall have received a written notice of objection within the time herein prescribed, Escrow Agent shall refuse to comply with any requests or employment law demands on it and shall continue to hold the Downpayment, together with any interest earned thereon, or if any the Downpayment Letter of Credit, as the case may be, until Escrow Agent receives either (a) a written notice signed by both Transferor and SLGOP stating who is entitled to the Downpayment (and interest) or the Downpayment Letter of Credit, as the case may be, or (b) a final order of a court of competent jurisdiction directing disbursement of the termination Downpayment (and interest) or delivery of the Downpayment Letter of Credit, as the case may be, in a specific manner, in either of which events specified Escrow Agent shall then disburse the Downpayment, together with the interest earned thereon, or deliver the Downpayment Letter of Credit, as the case may be, in accordance with such notice or order. Escrow Agent shall not be or become liable in any way or to any person for its refusal to comply with any such requests or demands until and unless it has received a direction of the nature described in clause 64.3 (Termination Rightsa) occur; or (b) above.
23.2 Any notice to Escrow Agent shall be sufficient only if received by Escrow Agent within the applicable time period set forth herein. All mailings and notices from Escrow Agent to Transferor and/or SLGOP, or from Transferor and/or SLGOP to Escrow Agent, provided for in this Section 23 shall be addressed to the party to receive such notice at its notice address set forth in Section 14 above (with copies to be similarly sent to the additional persons therein indicated), but the provisions of Section 14 relating to the manner of giving notices and the effective dates thereof shall have no application to the provisions of this Section 23.
23.3 Notwithstanding the foregoing, if Escrow Agent shall have received a requirement written notice of objection as provided for in Section 23.1.3 above within the time therein prescribed, or shall have received at any time before actual disbursement of the Downpayment or delivery of the Downpayment Letter of Credit, as the case may be, a written notice signed by either Transferor or SLGOP disputing entitlement to the Downpayment or the Downpayment Letter of Credit, as the case may be, or shall otherwise believe in good faith at any time that a disagreement or dispute has arisen between the Sub-contractor includes parties hereto over entitlement to the Downpayment or the Downpayment Letter of Credit, as the case may be (whether or not litigation has been instituted), Escrow Agent shall have the right, upon written notice to both Transferor and SLGOP, (a) to deposit the Downpayment, together with the interest earned thereon, or the Downpayment Letter of Credit, as the case may be, with the Clerk of the Court in which any litigation is pending and/or (b) to take such reasonable affirmative steps as it may, at its option, elect in order to terminate its duties as Escrow Agent, including, without limitation, the depositing of the Downpayment, together with the interest earned thereon, with a provision having court of competent jurisdiction and the same effect commencement of an action for interpleader, the costs thereof to be borne by whichever of Transferor or SLGOP is the losing party, and thereupon Escrow Agent shall be released of and from all liability hereunder except for any previous gross negligence or willful misconduct. If Escrow Agent is in possession of a Downpayment Letter of Credit and has elected to terminate its duties as clause 41.4.1 Escrow Agent hereunder during the pendency of a dispute between the parties, it shall deliver the Downpayment Letter of Credit to Tr ansferor who shall be entitled to draw on the same, provided that all proceeds shall be paid by Wire Transferred Funds to Escrow Agent's account described in Section 23.1.1(a), and such proceeds may thereafter be deposited with a court of competent jurisdiction, as set forth above.
23.4 Escrow Agent is acting hereunder without charge as an accommodation to SLGOP and Transferor, it being understood and agreed that Escrow Agent shall not be liable for any Sub-contract which error in judgment or any act done or omitted by it awardsin good faith or pursuant to court order, or for any mistake of fact or law. Where requested by the PurchaserEscrow Agent shall not incur any liability in acting upon any document or instrument believed thereby to be genuine. Escrow Agent is hereby released and exculpated from all liability hereunder, copies except only for willful misconduct or gross negligence. Escrow Agent may assume that any person purporting to give it any notice on behalf of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention party has been authorized to do so in at least one trade journal so. Escrow Agent shall not be liable for, and SLGOP and Transferor hereby jointly and severally agree to indemnify Escrow Agent against, any loss, liability or expense, including reasonable attorney's fees (paid to retained attorneys) arising out of any dispute under this Agreement, including the Public Contracts Scotland Portal; cost and follow a procedure leading to the selection expense of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changedefending itself against any claim arising hereunder.
Appears in 1 contract
Sources: Contribution and Purchase and Sale Agreement (Sl Green Realty Corp)
Escrow. As soon as reasonably practicable following Within [***] after the Commencement Effective Date, the Service Provider shall Open-Silicon and Customer will enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in technology escrow agreement (the “Escrowed MaterialEscrow Agreement”), with terms reasonably satisfactory to both parties, with [***] or another escrow agent designated by Customer (“Escrow Agent”). The Service Provider shall Thereafter, Open-Silicon will deposit the Escrowed Material with the Escrow Agent the following items on a regular basis (i.e., as soon as they are developed or created) during the basis term of this Agreement: (a) all Project Technology developed, created or obtained by or for Open-Silicon, and (b) such additional [***] in [***] possession necessary or useful to enable a [***] or other relevant vendors to [***] and collectively with the terms agreed in Project Technology, “Escrow Materials” Open-Silicon will use commercially reasonable efforts to ensure that the Escrow Agreement within ten (10) days of the date of Materials deposited with the Escrow Agreement being signedAgent are kept current. The Service Provider Customer shall pay the initial storage fees, the annual fees be responsible for any and update fees under all payments to the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due)Agent associated with such Escrow Agreement; and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency[***] (other than [***] of this Agreement by [***] pursuant to [***]) Open-Silicon will be responsible to pay, or Default of the Transferee; if already paid by Customer, reimburse Customer for, any such costs. The parties agree, and the Transferee shall only be able to assignEscrow Agreement will specify, novate or otherwise dispose that upon receipt by the Escrow Agent of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure a written notice from [***] that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that [***] has occurred, all Escrow Materials will immediately be released and delivered to Customer. SubOpen-Contracting The Purchaser approves the appointment of the SubSilicon hereby grants to Customer a perpetual, irrevocable, fully paid-contractors specified in Schedule 7 (Approved Subup, royalty-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatmentfree, non-discrimination exclusive, sublicenseable, worldwide, license; (i) to use, copy, reproduce, modify, translate, and transparency make derivative works based on the Manufacturing Data and which ensures (ii) distribute the Manufacturing Data (or derivatives thereof) to a contractor (e.g., a fab) to have such contractor produce a mask for the Products and use such mask to manufacture Products. Customer hereby covenants that such procedure is accessible it will not exercise its rights under the foregoing license until the occurrence of a Trigger Event. Customer further agrees that Project Technology created or developed by small Open-Silicon hereunder will not be used by Customer to perform the Services on its own or transfer the Services (or a portion thereof) to a third-party unless and medium enterprises. Changeuntil Open-Silicon agrees thereto in writing or a Trigger Event occurs.
Appears in 1 contract
Escrow. As soon security for the faithful performance of the terms of this Agreement and to insure the availability for delivery of the Shares upon exercise of the Purchase Option, Purchaser hereby delivers for deposit with the Secretary of the Company, or such other person designated by the Company, as reasonably practicable following escrow agent in this transaction ("Escrow Agent"), two stock assignments duly endorsed (with date and number of shares blank) together with the Commencement Date, certificate or certificates evidencing the Service Provider shall enter into a standard form Escrow Agreement with a reputable Shares. Such documents are to be held by the Escrow Agent satisfactory and delivered by the Escrow Agent pursuant to the following instructions of the Company and Purchaser:
(a) In the event the Company exercises the Purchase Option, Purchaser and the Company hereby irrevocably authorize and direct the Escrow Agent to execute the transaction contemplated by any notice of exercise of the Purchase Option in relation accordance with the terms of such notice and this Agreement.
(b) In connection with such transaction the Escrow Agent is directed to (i) to date the stock assignment necessary for the transfer in question, (ii) to fill in the number of shares being transferred, and (iii) to deliver such assignment, together with the certificate evidencing the Shares to be transferred, to the software and/or documentation agreed by Company against the Parties that is delivery of the Option Purchase Price.
(c) Purchaser irrevocably authorizes the Company to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on any certificates evidencing the basis Shares to be held by the Escrow Agent hereunder and any additions and substitutions to said Shares as described in this Agreement. Purchaser irrevocably constitutes and appoints the Escrow Agent as Purchaser's attorney-in-fact and agent for the term of this escrow to execute all documents appropriate to make such securities negotiable and to complete any transaction herein contemplated.
(d) Upon the expiration or termination of the terms agreed Purchase Option as to the Shares as provided in this Agreement, the Escrow Agreement within ten Agent will deliver to Purchaser the certificate or certificates representing such Shares and the escrow shall thereafter terminate as to such Shares.
(10e) days If at the time of termination of this escrow the date Escrow Agent has possession of any documents, securities, or other property belonging to Purchaser, the Escrow Agent shall deliver such property to Purchaser, and be discharged of all further obligations hereunder.
(f) The responsibilities of the Escrow Agreement being signedAgent hereunder shall terminate if the Secretary of the Company shall cease to be the Secretary or if the Escrow Agent shall resign by written notice to each party. The Service Provider shall pay In the initial storage feesevent of any such termination, the annual fees and update fees under the Company shall appoint a successor Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordinglyAgent. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6appointment, the Purchaser may assignPresident of the Company shall be the Escrow Agent.
(g) It is understood and agreed that should any dispute arise with respect to the delivery, novate ownership, or otherwise dispose right of its rights and obligations under this Contract possession of the Shares held by the Escrow Agent hereunder, the Escrow Agent is authorized to retain without liability to anyone all or any part thereof to: any Government Body; of said Shares until such disputes shall have been settled either by mutual written agreement or any other body established by a court order, decree, or judgment, if applicable, but the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Escrow Agent shall be available under no duty whatsoever to the Service Provider in the event of respectivelyinstitute or defend such proceedings.
(h) By signing this Agreement, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information Escrow Agent becomes a party hereto only for purposes relating to the performance purpose of executing the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that instructions set out forth in this clause 41.3 (including Section 10 and does not otherwise become a party to this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeAgreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Epitope Inc/Or/)
Escrow. As soon If fewer than 100% of the Turbines have been Placed in Service as of the Final Capital Contribution Date:
(i) The Adjusted Base Case Model run in connection with the Final Capital Contribution Date shall reflect (A) the actual number of Turbines that have been Placed in Service as of the Final Capital Contribution Date and (B) the actual number of Turbines that have not been Placed in Service but which (x) the Class B Equity Investor reasonably practicable following expects to be Placed in Service by no later than the Commencement Outside Date and (y) the Independent Engineer has certified are reasonably expected to (I) satisfy the clauses (a) through (e) of the definition of Placed in Service and (II) achieve “Taking Over” (as defined in the TSA) in each case, prior to the Outside Date (such Turbines referred to in this subclause (B), the “Additional Turbines”).
(ii) A portion of the Final Class A Capital Contribution, calculated as the Additional Turbine Escrow Factor multiplied by the number of Additional Turbines, will be paid directly into an escrow account (the “Additional Turbine Escrow Account”) governed by the Escrow Agreement.
(iii) For the avoidance of doubt, and without limiting any other provision of this Agreement to the contrary, the Class B Equity Investor and its Affiliates shall use commercially reasonable efforts to cause such Additional Turbines to be Placed in Service by no later than the Outside Date. If the Class B Equity Investor fails to cause any of the Additional Turbines to be Placed in Service by the Outside Date, the Service Provider Class B Equity Investor shall enter deliver an Additional Turbine Release Certificate to each of the Class A Equity Investors and the Escrow Agent and the portion of the Final Class A Capital Contribution placed into a standard form the Additional Turbine Escrow Account established pursuant to the Escrow Agreement with a reputable Escrow Agent satisfactory respect to such Additional Turbines shall be immediately returned to the Purchaser in relation Class A Equity Investors, together with interest at a rate per annum (based on a 360-day year of twelve 30-day months) equal to the software and/or documentation agreed by Target IRR for the Parties period commencing on the Final Capital Contribution Date and ending on the date such funds are returned to each Class A Equity Investor (it being understood that (x) interest shall not accrue on any portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account with respect to incomplete Additional Turbines to the extent such incomplete Additional Turbines become Completed Additional Turbines in accordance with clause (iv) below and (y) any portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account that is returned to any Class A Equity Investor pursuant to this Section 2.2(c)(iii), together with interest as calculated in accordance with this Section 2.2(c)(iii), shall be deposited reflected in escrow (the “Escrowed Material”Target IRR Report” (as defined in the LLC Agreement). The ), and the Class B Equity Investor shall have no liability to any Class A Equity Investor for any loss of ITC or other tax benefits expected from such Turbines.
(iv) If the Class B Equity Investor causes any of such Additional Turbines to become a Completed Additional Turbine, the Class B Equity Investor shall deliver to the Class A Equity Investors a duly completed Additional Turbine Placed in Service Provider Certificate with respect to such Completed Additional Turbine(s), which shall, in connection with the Type Certificate, include the Independent Engineer’s verification of each Major Component for each applicable Completed Additional Turbine, and, promptly following delivery of such Additional Turbine Placed in Service Certificate, the Class A Equity Investors shall deposit the Escrowed Material with instruct the Escrow Agent in writing to release the portion of the Final Class A Capital Contribution placed into the Additional Turbine Escrow Account that is allocable to such Completed Additional Turbine to be distributed to the Class B Equity Investor. Notwithstanding the foregoing, to the extent that any of the Major Components used for any of the applicable Completed Additional Turbines were not set forth on the basis Type Certificate, subject to all other conditions being satisfied or waived, the aforementioned release and distribution of funds from the Additional Turbine Escrow Account for the Completed Additional Turbines shall occur and Section 6.1(c)(i) of the terms agreed in LLC Agreement shall apply.
(v) If the Escrow Agreement within ten Class B Equity Investor causes any of the Additional Turbines to become a Completed Additional Turbine then, no later than the earlier of (101) days of the date of the Escrow Agreement being signed. The Additional Turbine Placed in Service Provider shall pay Certificate with respect to the initial storage feesfinal Completed Additional Turbine to be Placed in Service and (2) the Outside Date, the annual fees and update fees under the Escrow Agreement and the Purchaser Class B Equity Investor shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due deliver to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be Class A Equity Investors a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Completed Additional Turbine Cost Segregation Report.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Equity Capital Contribution Agreement (Avangrid, Inc.)
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in (a) An escrow account (the “Escrowed MaterialEscrow Account”) will be established pursuant to an escrow agreement substantially in the form attached hereto as Exhibit A (the “Escrow Agreement”). The Service Provider shall deposit Each Purchaser’s Investment Amount for the Escrowed Material with Seller Shares set forth on its signature page hereto will be delivered to the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signedAccount. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Each Purchaser shall pay purchase from each Seller the release feenumber of shares of Company common stock as set forth opposite such Purchaser’s name on Exhibit C attached hereto. Assignation The Service Provider may not assign any Such Purchaser’s Investment Amount shall be allocated to purchasing the shares of its rightsCompany common stock being offered by ABS Capital Partners III, obligations or interest in this Contract or any part L.P. up to a total value of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract$12,020,926.30. Any change in remaining portion of Purchaser’s Investment Amount shall be allocated to purchasing the legal status shares of the Purchaser such that it ceases Company common stock being offered by Tarantella, Inc.
(b) Concurrently with its execution of this Agreement each party to this Agreement will deliver or cause to be a Government Body shall not, subject delivered to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇▇ Capital Partners, LLC (“RCP”):
(i) for each Purchaser, duly and awarded following a fairvalidly executed copies of the Registration Rights Agreement, open, transparent the Notice of Registration Statement and competitive process proportionate Selling Securityholder Questionnaire substantially in the form of Exhibit A attached to the nature Registration Rights Agreement and value all other documents required to be duly and validly executed and delivered by the Purchasers;
(ii) each Seller will deliver or cause to be delivered to RCP duly and validly executed copies of the contractRegistration Rights Agreement, the Escrow Agreement, and all other documents required to be duly and validly executed and delivered by each Seller; includes provisions requiring and
(iii) the conduct Company will deliver or cause to be delivered with RCP duly and validly executed copies of audits; the Registration Rights Agreement, the Escrow Agreement, and is all other documents required to be duly and validly executed and delivered by the Company.
(c) Prior to the Closing, each Seller will deliver to the Transfer Agent certificates representing the Seller Shares, together with such other documents as the Company and the Transfer Agent may require to effect the transfer of such shares to the name of the Purchasers, including executed stock powers and directions for the Transfer Agent to effect such transfer. The Company will use its reasonable best efforts to cause the Transfer Agent to reissue the Seller Shares in the same terms as name of each Purchaser so that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply Certificates registered in the performance name of its contract with legal obligations in each Purchaser will be issued to such Purchaser at the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeClosing.
Appears in 1 contract
Escrow. As soon (a) The Sellers hereby direct the Buyers to deliver in escrow, at the Closing and for the benefit of Sellers or the Buyer Indemnitees, as the case may be, to ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, or if ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association is unwilling or unable to serve, to another escrow agent reasonably practicable following agreed to by Sellers and Buyer, pursuant to an agreement in the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow attached hereto as Exhibit D (the “Escrowed MaterialEscrow Agreement”). The Service Provider shall deposit , the Escrowed Material with following: (i) an amount of cash equal to the Closing Cash Escrow Agent on the basis Amount, (ii) an amount of cash equal to ten percent (10%) of the terms agreed Additional Closing Cash (if any), and (iii) a number of shares of Buyer Parent Common Stock equal to the Closing Stock Escrow Amount ((i), (ii) and (iii) together, the “Escrow Fund”).
(b) The Escrow Fund, including any earnings, dividends or interest thereon, shall be held and disbursed as provided in the Escrow Agreement within ten Agreement, which shall provide, among other things, that (10i) days of any fees or expenses payable to the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees escrow agent under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightson account of, obligations in connection with or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due related to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 Escrow Fund (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “TransfereeEscrow Costs”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available paid out of the earnings, dividends and interest on the Escrow Fund, and, to the Service Provider extent that such earnings, dividends and interest are insufficient to pay the Escrow Costs, paid equally by Sellers, on the one hand, and Buyers, on the other hand; (ii) the Escrow Fund (but not any earnings, dividends or interest thereon) shall be disbursed, as set forth in Section 1.3(c), to the Buyer Indemnitees to satisfy any obligation of any Seller under Section 7.2 when the conditions for indemnification set forth in this Agreement have been satisfied; and (iii) as of the 15-month anniversary of the Closing Date, any amount of cash and shares of Buyer Parent Common Stock remaining in the event Escrow Fund (other than any amount of respectivelycash and shares of Buyer Parent Common Stock required to satisfy the maximum amount of the aggregate of any unresolved claims for indemnification as of such time), including any accrued earnings, dividends or interest thereon but less any Taxes due on account thereof and less any Escrow Costs, less any amounts then due and payable from the Escrow Fund to any Buyer Indemnitee pursuant to Section 7.2 (any such remaining cash, the bankruptcy or insolvency“Remaining Cash Escrow Amount” and any such remaining shares of Buyer Parent Common Stock, or Default of the Transferee; and the Transferee shall only be able to assign“Remaining Stock Escrow Amount”), novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors distributed as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included whichfollows: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30v) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇ ▇▇▇▇▇▇▇▇ shall receive 10.6113% of the Remaining Cash Escrow Amount and 44.4444% of the Remaining Stock Escrow Amount; (w) ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall receive 10.6113% of the Remaining Cash Escrow Amount and 44.4444% of the Remaining Stock Escrow Amount; (x) ▇▇▇▇▇▇▇▇▇.▇ ▇▇▇.▇▇▇▇▇ shall receive 1.3264% of the Remaining Cash Escrow Amount and 5.5556% of the Remaining Stock Escrow Amount; (y) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall receive 1.3264% of the Remaining Cash Escrow Amount and awarded following a fair, open, transparent 5.5556% of the Remaining Stock Escrow Amount; and competitive process proportionate (z) Sun Mortgage Partners shall receive 76.1246% of the Remaining Cash Escrow Amount. Sellers shall be treated as the owner of the Escrow Fund for all tax purposes.
(c) If and when the Escrow Fund shall be disbursed to the nature Buyer Indemnitees, such disbursement shall consist of an aggregate amount of cash and value shares of Buyer Parent Common Stock (where such shares of Buyer Parent Common Stock are valued on the basis of the contract; includes provisions requiring the conduct Stock Price as of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer such date of disbursement) equal to the correct designation aggregate amount of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changeindemnification obligation under Section 7.2.
Appears in 1 contract
Sources: Securities Purchase Agreement (Friedman Billings Ramsey Group Inc)
Escrow. As soon as reasonably practicable following Within [*] from the Commencement Effective Date, EMC and McDATA shall (a) identify an escrow agent (Escrow Agent) acceptable to both parties and (b) execute an agreement with the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory (Escrow Agreement) for the pre-arranged holding and releasing of the Software, including without limitation, the EFC Management and Service Software and any other software elements of the Products and all documentation and McDATA's source code, engineering drawings and specifications, manufacturing documentation, test procedures and associated intellectual property (collectively the Escrow Material). Within [*] from the Effective Date, McDATA shall also concurrently appoint and legally empower a Trustee and Administrator of said Escrow Agreement. Within [*] after the announced general availability of any of the Products, McDATA shall deposit with the Escrow Agent the most current production level of the Escrow Material, as defined in the Escrow Agreement. Thereafter, McDATA shall within thirty (30) calendar days after the release of an update to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall Products, deposit the Escrowed updated Escrow Material with the Escrow Agent on Agent. McDATA agrees to bear all costs arising out of compliance with this Section 10.10, including without limitation, the basis costs of establishing and maintaining the escrow of the terms agreed Products, and of any and all documentation preparation necessary to meet the requirements of this Section. In addition to any other rights and remedies available to EMC, in the Escrow Agreement within ten event (10a) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may a material breach which has not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due been cured pursuant to the Service Provider under this Contract subject to: deduction provisions of sums Section 2.4 herein, (b) of proceedings in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify bankruptcy or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments insolvency invoked by or for handling invoicesagainst McDATA, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of an * Certain information on this page has been omitted and filed separately with the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in commission. Confidential treatment has been requested with respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contractomitted portions. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor Asterisks within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇brackets denote omissions.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Development Agreement (McData Corp)
Escrow. As soon as reasonably practicable following the Commencement DateUpon execution of this Agreement, the Service Provider Pledgor shall enter into a standard form Escrow Agreement deposit with a reputable Escrow Agent satisfactory the Pledged Shares, along with the aforesaid Assignment (all of which items shall hereinafter be referred to as the Purchaser in relation to the software and/or documentation agreed by the Parties that is "Pledged Documents") to be deposited held in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the for future delivery as follows:
a. Escrow Agent on shall deliver the basis of the terms agreed in the Escrow Agreement Pledged Documents to Pledgee within ten (10) days after receiving an affidavit signed by Pledgee stating that:
(i) Pledgor is in default under the Note and all periods of time within which to cure such default have expired;
(ii) Pledgee is accelerating the entire unpaid balance due under the Note; and
(iii) Pledgee demands delivery of the date Pledged Documents. Pledgee shall simultaneously furnish Pledgor with a copy of said affidavit. Upon such delivery of the Pledged Documents, Escrow Agreement Agent's duties hereunder shall terminate.
b. In the event Escrow Agent has not delivered the Pledged Documents pursuant to subparagraph a above, then Escrow Agent shall deliver the Pledged Documents to Pledgor within ten (10) days after receipt of the original of the Note marked "paid in full," accompanied by instructions from Pledgor indicating that said Note has been paid in full and the Pledged Documents shall be delivered to Pledgor at the address specified therein. Upon such delivery of the Pledged Documents, Escrow Agent's duties hereunder shall terminate. Pledgee agrees to deliver the Note to Pledgor marked "paid in full," immediately upon satisfaction thereof.
c. Upon execution of this Agreement, Pledgor shall deliver to the Escrow Agent Stock Certificate Number________________, representing_________ _____________________________ shares of common stock of Centrack International, Inc. Pledgor shall further execute an endorsement/assignment of said Certificate appointing the Escrow Agent as Attorney to effectuate division and reissuance of same as follows: Initials / ---------------
1. Two Hundred Fifty Thousand (250,000) shares to Pledgor, same to be held in escrow by the Escrow Agent pursuant to the terms of this Agreement.
2. One Hundred Twenty Thousand (120,000) shares to the Pledgee as consideration for the loan being signedextended pursuant to the $60,000.00 Promissory Note attached hereto.
3. The Service Provider ________________________________shares which shall pay be forwarded to Pledgor upon receipt by the initial storage feesEscrow Agent. Nothing hereinabove withstanding to the contrary, until such time as the above division of the stock is accomplished, the annual fees total number of shares shall constitute collateral for payment of the obligations pursuant to this Agreement. Pledgor and update fees under Pledgee hereby acknowledge that the Escrow Agreement and Agent is making no representations as to right or legality pertaining to the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent above division of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises stock or its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider sale in the event of respectivelythe default, and Pledgor and Pledgee each agree that Escrow Agent shall have no liability resulting from the bankruptcy or insolvency, or Default inability to accomplish the terms of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates Pledge Agreement due to the performance of inability to divide, transfer or sell the Service Provider’s obligations under this Contractstock. In such circumstances the Purchaser shall authorise the Transferee Pledgor and Pledgee each agree to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract indemnify and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out hold Escrow Agent harmless in this clause 41.3 (including regard and as otherwise provided for in this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeAgreement.
Appears in 1 contract
Sources: Pledge and Escrow Agreement (Centrack International Inc)
Escrow. As soon as reasonably practicable following HNC will withhold from the Commencement Dateshares of HNC Common Stock issued to each Shareholder pursuant to Section 1.1.1 and from the amount of cash otherwise payable to each Shareholder pursuant to Section 1.1.1, 10% of such shares and 10% of such cash and will deliver such withheld shares and cash (the Service Provider shall enter into "ESCROW AMOUNT") to State Street Bank and Trust Company of California, N.A., or a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to similar institution chosen by HNC (the Purchaser in relation to the software and/or documentation agreed by the Parties that is "ESCROW AGENT"), to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with held by the Escrow Agent on as security for the basis indemnification obligations of the terms agreed Shareholders under their Indemnity Agreements and pursuant to the provisions of an escrow agreement in substantially the form of EXHIBIT G hereto among HNC, the Escrow Agent and the Representatives (as defined in Section 1.1.6(b)) (the "ESCROW AGREEMENT").
(a) With respect to each Founder, the Escrow Amount that will be withheld from the cash that would otherwise be payable to such Founder at the Closing will be separate and apart from (and will not reduce the amount of) any cash that is withheld from such Founder and placed in the escrow created pursuant to the Liquidated Damages Escrow Agreement.
(b) The Shareholders, by executing and delivering written consents to the Merger and this Agreement, by executing and delivering Indemnity Agreements and/or by tendering their Company Certificates as provided in Section 6.2, shall be deemed to (i) adopt and agree to be bound by the Escrow Agreement within ten (10and the indemnification provisions incorporated by reference therein), (ii) days appoint the Founders as representatives of the date of Shareholders (the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees "REPRESENTATIVES") under the Escrow Agreement and as attorneys-in-fact and agents for and on behalf of each Shareholder as provided in the Purchaser shall pay Escrow Agreement, (iii) authorize the release fee. Assignation The Service Provider may not assign Representatives to take any of its rightsand all actions and make any and all decisions required or permitted to be taken or made by the Representatives under the Escrow Agreement, obligations or interest in this Contract or any part of it without including the prior written consent exercise of the Purchaserpower to (A) authorize delivery to HNC of amounts in escrow in satisfaction of indemnity claims as provided therein, (B) agree to negotiate and enter into settlements and compromises of, demand arbitration of, and comply with orders of courts and awards of arbitrators with respect to, such claims; (C) arbitrate, resolve, settle or compromise any claim for indemnity made as provided therein and (D) take all actions necessary in the judgment of the Representatives for the accomplishment of the foregoing. Notwithstanding clause 39.1The Representatives will have unlimited authority and power to act on behalf of each Shareholder with respect to the Escrow Agreement, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction disposition, settlement or other handling of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established claims governed by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the PurchaserEscrow Agreement, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract so long as all Shareholders are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms manner. The Shareholders will be bound by all actions taken by the Representatives in connection with the Escrow Agreement, and HNC will be entitled to rely on any action or decision of any of two of the Representatives as that set out constituting the action or decision of the Representatives pursuant to their authority to act on behalf of the Shareholders pursuant to the Escrow Agreement and this Agreement. In performing the functions specified in this clause 41.3 (including this clause 41.3.5 subject only Agreement or the Escrow Agreement, the Representatives will not be liable to modification to refer any Shareholder for any act or omission as Representatives made in good faith and in the exercise of reasonable judgment. Any out-of-pocket costs and expenses reasonably incurred by the Representatives in connection with actions taken pursuant to the correct designation terms of the equivalent party as Escrow Agreement will be paid by the Service Provider and Sub-contractor as Shareholders to the case may be. The Service Provider shall also include Representatives, out of any amounts that would otherwise be distributed to the Shareholder from the escrow, pro rata in every Sub-contract: a right for the Service Provider proportion to terminate that Sub-contract if the relevant Sub-contractor fails to comply their respective percentage interests in the performance of its contract with legal obligations amount in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changeescrow.
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) On the Commencement Closing Date, the Service Provider shall enter into a standard form following will be placed or deposited in escrow with Robert L. Blessey, Esq. (the "Escrow Agreement with a reputable Agent"):
(i) ▇▇▇ ▇▇ ▇▇▇ ▇ocuments to be delivered by Sagemark at the Closing pursuant to Paragraph 8 of the Agreement;
(ii) all of the documents to be delivered by Trident Advisors at the Closing pursuant to Paragraph 9 of the Agreement; and
(iii) the $625,000 cash portion of the Purchase Price payable by Trident Advisors on the Closing Date (the "Escrow Funds").
(b) The Escrow Agent satisfactory will, without any further notice or action of any kind whatsoever, release to Sagemark and Trident Advisors, as applicable, all of the documents delivered to it pursuant to Sections 6(a)(i) and 6(a)(ii) hereof and will release to Sagemark the Escrow Funds on July 31, 2006 unless, prior to such date, Trident Advisors delivers to the Escrow Agent (or causes to be delivered), the sum of $2,570,000 (the "Cash Purchase Price") from a replacement purchaser of the Limited Partnership Interest selected by Trident Advisors (the "Substitute Purchaser"), by wire transfer to the Escrow Agent's special attorneys escrow account as hereinafter provided, together with the Regulatory Approval with respect to such purchaser and all of the documents required to be delivered at Closing under Paragraph 9 of the Agreement executed by the Substitute Purchaser. If the Escrow Agent receives the aforementioned documents and the Cash Purchase Price from the Substitute Purchaser prior to July 31, 2006, the Escrow Agent will (i) return Trident Advisors' Closing documents and the Escrow Funds to it, (ii) release the Cash Purchase Price and the Substitute Purchaser's Closing documents to Sagemark and return to Sagemark all of the Closing documents referred to in Section 6(a)(i) hereof, and (iii) deliver to the Substitute Purchaser, within three (3) business days thereafter, the documents to be delivered by Sagemark at the Closing as set forth in Paragraph 8 of the Agreement issued to the Substitute Purchaser in lieu of such documents previously issued to Trident Advisors.
(c) The Escrow Agent will serve in such capacity without compensation therefor. The Escrow Agent's duties and obligations under this Amendment shall be determined solely by the express provisions of this Amendment and it shall have no other duties and no other duties shall be implied. For greater certainty, the Escrow Agent is not charged with any duties or responsibilities with respect to the Agreement. The Escrow Agent shall not be required to notify or obtain the consent, approval, authorization, or order of, any court or governmental body to perform its obligations under this Amendment nor shall it be held liable to any party hereto in any manner whatsoever for having carried out instructions it has received in accordance with this Amendment or complying with its obligations hereunder.
(d) In the event the Escrow Agent shall be uncertain as to any of its duties or rights hereunder or in the event of any disagreement among the parties hereto or the presentation to the Escrow Agent of any adverse claim or demand by Trident Advisors or Sagemark in connection with the disbursement of the Escrow Funds, the Escrow Agent may, at its option after providing written notice to Trident Advisors and Sagemark of such disagreement or adverse claim or demand, refuse to comply with any such claim or demand during the continuance of such disagreement or adverse claim or demand and may refrain from disbursing any amount from the Escrow Funds, and in so doing, the Escrow Agent shall not become liable to Trident Advisors or Sagemark due to its failure to comply with such adverse claim or demand. In the event of any such disagreement or adverse claim or demand, the Escrow Agent shall be entitled, at its option and without liability, to file a lawsuit in interpleader and obtain a court order requiring the parties to interplead and litigate a resolution of any such disagreement or adverse claim or demand. In the event such interpleader lawsuit is commenced, the Escrow Agent shall be fully released and discharged from all obligations to further perform any and all duties or obligations imposed upon it in relation to the software and/or documentation agreed disputed amount except as may be required by the Parties that is a court order in such lawsuit. Trident Advisors and Sagemark each jointly and severally agree to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with reimburse the Escrow Agent on the basis of the terms agreed in for all costs, expenses, and reasonable attorney's fees expended or incurred by the Escrow Agreement within ten Agent in connection with any such lawsuit.
(10e) days If Trident Advisors or Sagemark or any other person obtains a judgment of the date a court of competent jurisdiction directing the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under Agent to release the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsFunds, obligations or interest in this Contract or any part thereof, in respect of it without the prior written consent which no right of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums appeal lies or in respect of which the Purchaser exercises its right time for appeal therefrom has expired, and delivers a copy of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation such judgment or order to the recovery Escrow Agent, the Escrow Agent shall promptly thereafter release the Escrow Funds in accordance with the terms of sums due but unpaidsuch judgment or order and is hereby irrevocably authorized to do so by Trident Advisors and Sagemark. The Service Provider must notify Trident Advisors or ensure that any Assignee notifies the Purchaser Sagemark, as applicable, agree to provide a copy of any variations such judgment to the arrangements for making payments or for handling invoices, in each case in good time other provided that the failure to enable the Purchaser to redirect payments or invoices accordingly. In the absence of provide such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform copy will not affect any of the functions that had previously rights or obligations of the Escrow Agent under this Agreement.
(f) The Escrow Agent shall not be liable to Trident Advisors or Sagemark by reason of an error of judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law or for anything which it may do or refrain from doing in connection with this Amendment, except for any liability to Trident Advisors or Sagemark caused by or arising out of the Escrow Agent's judicially determined gross negligence or willful misconduct. In no event, however, will the Escrow Agent be liable to Trident Advisors or Sagemark for any indirect, special, consequential or punitive damages.
(g) The Escrow Agent shall be entitled to rely on, without any independent inquiry, and shall be protected in acting in reliance upon, any instructions or directions furnished to it in writing by Trident Advisors or Sagemark pursuant to any provisions of this Amendment and shall be entitled to treat as genuine, any letter, paper, or other document furnished to it and believed by it to be genuine and to have been performed signed and presented by the Purchaser; proper party or parties without any private sector body independent inquiry.
(h) Trident Advisors and Sagemark each hereby release and forever discharge the Escrow Agent from any and all claims, demands, costs (including legal fees and disbursements), damages, liabilities, obligations, actions or causes of action incurred, sustained or made by or against any party hereto and hereby jointly and severally agree to indemnify, defend, and hold the Escrow Agent harmless from and against all losses, damages, costs, charges, liabilities, and expenses, including all costs of litigation, investigation and legal fees incurred by the Escrow Agent which substantially performs arise directly or indirectly out of its entering into this Amendment or its conduct as Escrow Agent pursuant to this Amendment (the functions "Losses"), except with respect to any Losses which are caused by the Escrow Agent's judicially determined willful misconduct or gross negligence. The Escrow Agent may consult with counsel of its choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel.
(i) The Escrow Agent reserves the right to resign as the Escrow Agent at any time upon five (5) business days notice thereof to Trident Advisors and Sagemark. Upon any such notice of resignation by the Escrow Agent, Trident Advisors and Sagemark shall appoint a replacement escrow agent within such five (5) day period commencing on the date of any such notice of resignation. The Escrow Agent will deliver the Escrow Funds to such replacement escrow agent upon its receipt of notice from Trident Advisors and Sagemark of the Purchaserappointment of such replacement escrow agent. If no such replacement escrow agent has been appointed within such five (5) day period, provided that the Escrow Agent may, at the expense of Trident Advisors and Sagemark, petition any court of competent jurisdiction for the appointment of a successor escrow agent. Upon any such assignationappointment of a successor escrow agent, novation or other disposal the escrow agent shall not increase forward the burden Escrow Funds and all documents held by it in escrow pursuant to the terms of this Amendment to such successor escrow agent.
(j) Wire transfers of payments to the Service Provider’s obligations Escrow Agent under this Contract. Any change in the legal status Amendment shall be made to:
(k) The provisions of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity subparagraphs (c) through (h) of this Contract. In such circumstances, this Contract shall bind and inure to Section 6 will survive the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated expiration or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency Agreement or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Amendment.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon Notwithstanding any provision of this Agreement to the contrary:
(a) In lieu of delivering to the Shareholders certificates for the Preferred Shares, Qorus shall deliver or cause to be delivered to Guzov Ofsink, LLC, as reasonably practicable following escrow agent (the Commencement Date"Escrow Agent") for deposit into escrow pursuant to an escrow agreement substantially in the form attached hereto as Exhibit B (the "Escrow Agreement"), the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory certificates representing all of the Preferred Shares to be issued to the Purchaser in relation to the software and/or documentation agreed by the Parties that is Shareholders under this Agreement other than Gateway Shares to be deposited in escrow delivered at Closing and the shares of Common Stock issuable upon conversion of such Preferred Shares to be delivered upon conversion (collectively, the “Escrowed Material”"Escrow Shares"). The Service Provider certificates representing the Escrow Shares, each accompanied by stock powers duly endorsed in blank, with each Shareholder's signature medallion guaranteed by a national bank or a qualified notarization agent in China shall deposit be held in the Escrowed Material with escrow account and disposed of by the Escrow Agent on the basis of in accordance with the terms agreed in the Escrow Agreement within ten (10) days of the date and provisions of the Escrow Agreement.
(b) The Escrow Agreement being signedshall provide, among other things, that the Escrow Agent shall submit such number of the Escrow Shares to Qorus' transfer agent for cancellation based on the number of shares of common stock or common stock equivalents issued by Qorus to investors during the twelve month period following the Closing ("Financings"). The Service Provider shall pay the initial storage feesSpecifically, for each share of Common Stock issued by Qorus in connection with any Financings and for each share of Common Stock underlying any warrant, option or convertible security issued by Qorus in connection with any Financings, the annual fees and update fees under the Escrow Agreement and the Purchaser Agent shall pay the release fee. Assignation The Service Provider may not assign any submit one share of its rights, obligations Common Stock (or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider one Common Stock equivalent in the event of respectively, the bankruptcy or insolvency, or Default Preferred Shares have not been converted) for cancellation. The shares to be so cancelled shall be allocated among the Shareholders in proportion to their respective ownership of the Transferee; and Shares as described in Schedule 1.1 hereto.
(c) On the Transferee shall only be able to assigndate twelve (12) months following the Closing Date, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of extent that the Service Provider’s obligations under this Contract. In such circumstances the Purchaser Escrow Shares have not been submitted for cancellation, all Escrow Shares shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating be released to the performance of Shareholders in whose name the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they shares are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇registered.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Exchange Agreement (Qorus Com Inc)
Escrow. As soon as reasonably practicable following Immediately upon receipt of the Commencement Dateproceeds of the Varian Sale, the Service Provider shall enter Company will wire into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis client trust account of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇, P.C. ("WSGR"), the sum of $4,725,000 (the "Redemption Amount"). Each Purchaser agrees to deliver all certificates representing the Series A Shares (the "Series A Certificates") held by it, duly endorsed for transfer, to WSGR, which will act as escrow agent (in such capacity, "Escrow Agent"), not later than the business day after receipt by such Purchaser of notice from Escrow Agent that Escrow Agent has received the Redemption Amount in its client trust account. Upon tender of all of the Series A Certificates for redemption and awarded following receipt of written direction from each Purchaser (or such Purchaser's representative), Escrow Agent will cause the applicable Redemption Price to be wired to each Purchaser according to wire instructions provided by each such Purchaser to Escrow Agent and the --------------- (*)Southbrook previously converted 2,000 shares. Redemption will be deemed completed. If Escrow Agent does not receive the Redemption Amount by July 31, 1998, a fair, open, transparent and competitive process proportionate majority in interest of the Purchasers shall have the right to terminate this Agreement by notice to the nature Company and value to Escrow Agent and in such case Escrow Agent will return the Redemption Amount to the Company and the Series A Certificates to the Purchasers. If Escrow Agent has received the Redemption Amount, but one or more of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer Purchasers has not tendered its Series A Certificate to the correct designation of Company by July 31, 1998, the equivalent party as Company shall have the Service Provider and Sub-contractor as right to either except the case may be. The Service Provider shall also include in every Sub-contract: a right tendered Series A Shares for the Service Provider to redemption or terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested this Agreement by the Purchaser, copies of any Sub-contract must be sent by the Service Provider notice to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal Escrow Agent and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangePurchasers.
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory On or prior to the Purchaser close of business on [June 6, 2003] Buyer will deposit in relation escrow that portion of the Asset Purchase Price that is allocable under Schedule 4.5 of the Agreement to the software and/or documentation agreed Store Properties (the "Weekend Stores") for which the Inventory Count, as set forth on Exhibit A hereto, is to commence on either Friday, June 6 or Saturday, June 7, together with an amount equal to the sum of the Store Percentages of the Weekend Stores multiplied by the Parties that is to be deposited estimated Inventory Purchase Price of $40,000,000. the sum of $82,500,000 representing (a) the Asset Purchase Price of $42,500,000 and (b) the Estimated Inventory Purchase Price of $40,000,000. Such amount (which, together with any interest accrued thereon while held in escrow (the “Escrowed Material”). The Service Provider hereunder, shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): "Funding Deposit") will be held pursuant to an escrow agreement (the rights "Purchase Price Funding Escrow Agreement") containing the terms and in the form of termination Exhibit C hereto. In the case of any Weekend Store, Tthe Purchase Price Certification, when signed by Seller and Buyer, shallfor any Store Property shall, when signed by Seller and Buyer, constitute instructions to the Escrow Agent to (a) disburse the Indemnity Escrow Amount shown on the Purchase Price Certification to the Escrow Agent to hold pursuant to the Indemnity Escrow Agreement (b) disburse the Purchase Price Escrow Amount shown on the Purchase Price Certification to the Escrow Agent to hold pursuant to the Purchase Price Adjustment Escrow Agreement and (c) remit to Seller (or, if so instructed by Seller, to Seller's lenders) by wire transfer an amount equal to the Net Payable to Seller. In the case of any Store Property other than a Weekend Store, immediately upon the completion of a Purchase Price Certification with respect to such a Store Property, Buyer will deliver, via wire transfer of immediately available funds, (a) to the Escrow Agent, the Indemnity Escrow Amount shown on the Purchase Price Certification, to hold pursuant to the Indemnity Escrow Agreement (b) to the Escrow Agent, the Purchase Price Escrow Amount shown on the Purchase Price Certification, to hold pursuant to the Purchase Price Adjustment Escrow Agreement and (c) to Seller (or, if so instructed by Seller, to Seller's lenders), an amount equal to the Net Payable to Seller shown on the Purchase Price Certification. To the extent the Funding Deposit is not sufficient to pay all amounts payable to Seller pursuant to the respective Purchase Price Certifications for the Weekend Store Properties, Buyer will remit such amounts in immediately available funds to Seller. Upon the conclusion of the Purchaser transfers of funds contemplated by this paragraph with respect to all of the Weekend Stores Properties, the Parties will jointly instruct the eEscrow aAgent will, without further instructions from any party other than Buyer, to remit any remaining Funding Deposit to Buyer. The provisions of this Section 4 are intended to supplement Sections 4.3, 14.1, and 14.2 of the Agreement in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change order to permit payment of Control) shall be available the Cash Purchase Price to occur as to individual Store Properties upon the Service Provider completion of the Inventory Count as to such Store Property in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out manner described in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may beSection 4. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change5.
Appears in 1 contract
Escrow. As soon (i) Simultaneously with the execution and delivery of this Agreement by a Purchaser, except as reasonably practicable following set forth in Schedule 2.1(d), such Purchaser shall promptly cause a wire transfer of immediately available funds (U.S. dollars) in an amount representing the Commencement Date“Aggregate Purchase Price (Subscription Amount)” on such Purchaser’s signature page affixed hereto and opposite such Purchaser’s name thereon, to be paid to a non-interest bearing escrow account of the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to set forth on Exhibit H attached hereto (the Purchaser aggregate amounts received being held in relation to the software and/or documentation agreed escrow by the Parties that is Escrow Agent are referred to be deposited in escrow (herein as the “Escrowed MaterialEscrow Amount”). The Service Provider Escrow Agent shall deposit hold the Escrowed Material Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.18, in which case, if the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date then holds any portion of the Escrow Agreement being signed. The Service Provider Amount, then: (I) the Escrow Agent shall pay return the initial storage feesportion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, in accordance with written wire transfer instructions received from such Purchaser; and (II) if Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(B) in the case of the Closing, receipt of written instructions from the Company, Whitehall and the Placement Agent that the Closing shall have been consummated, in which case, the annual Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (I) the Placement Agent Fee to the Placement Agent, (II) the fees and update fees under expenses of counsel to the Placement Agent, to such counsel, and (III) the balance of the aggregate purchase price to the Company.
(iii) The Company, Whitehall and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (I) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (II) is only responsible for (a) holding the Escrow Amount in escrow pending receipt of written instructions from the Company, Whitehall and the Purchaser shall pay Placement Agent directing the release fee. Assignation The Service Provider may not assign of the Escrow Amount, and (b) disbursing the Escrow Amount in accordance with the written instructions from the Company, Whitehall and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (a) and (b) is ministerial in nature, and no implied duties or obligations of any of its rights, obligations kind shall be read into this Agreement against or interest in this Contract or any on the part of the Escrow Agent (collectively, the “Escrow Agent Duties”); (III) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the prior written consent proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of the Purchaser. Notwithstanding clause 39.1authority of the Person signing or presenting the same; (v) may consult counsel satisfactory to it, and the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction opinion or advice of sums such counsel in any instance shall be full and complete authorization and protection in respect of which any action taken, suffered or omitted by it hereunder in good faith and in accordance with the Purchaser exercises its right opinion or advice of recovery under clause 12 (Recovery of Sums Due)such counsel; and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Controlvi) shall be available authorized to receive from the Escrow Amount, on the applicable Closing Date, its reasonable fees and expenses as counsel to the Service Provider Placement Agent as set forth in Section 2.1(d)(ii)(B) above. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the event case of respectively, the bankruptcy Escrow Agent’s gross negligence or insolvency, or Default willful misconduct in breach of the Transferee; Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(C) The Company, Whitehall and the Transferee shall only be able to assignPurchasers hereby indemnify and hold harmless the Escrow Agent from and against any and all loss, novate liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the Escrow Agent may suffer or otherwise dispose incur by reason of its rights and obligations under this Contract any action, claim or any part thereof with proceeding brought against the prior consent in writing Escrow Agent arising out of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes or relating to the performance of the Service Provider’s obligations Escrow Agent Duties, except to the extent such action, claim or proceeding is the result of the fraud, willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Contract Agreement and is, therefore, hereby authorized to continue acting as legal counsel to such Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. Each of the Company, Whitehall and the Purchasers hereby expressly consents to permit the Escrow Agent to represent the Placement Agent in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Company, Whitehall and the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) Escrow Agent shall have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, Whitehall and the Placement Agent at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of ten (10) calendar days following the effective date of resignation, at which time,
(I) if an independent successor escrow agent shall have been appointed and have accepted such appointment in a writing to the Company, Whitehall and the Purchasers, then upon written notice thereof given to the Company, Whitehall, the Placement Agent, and each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the independent successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or
(II) if an independent successor escrow agent shall not have been appointed, for any reason whatsoever, Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and give written notice thereof to the Company, Whitehall, the Placement Agent and each of the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company, Whitehall and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other purpose instructions received by it or with any provision of this Agreement, Escrow Agent shall have the absolute right to suspend all further performance under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a court of competent jurisdiction, joint written instructions from the Company, Whitehall and the Placement Agent, or otherwise. In the event that any controversy arises between the Company, Whitehall and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall take have the absolute right, in its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Escrow Agent and file a suit in interpleader in that court and obtain an order from that court requiring all reasonable steps parties involved to ensure litigate in that court their respective claims arising out of or in connection with the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential InformationEscrow Amount. Change of Control The Service Provider must notify Upon the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves deposit by the appointment Escrow Agent of the Sub-contractors specified Escrow Amount with the clerk of such court in Schedule 7 accordance with this provision, the Escrow Agent shall thereupon be relieved of all further obligations and released from all liability hereunder.
(Approved Sub-contractorsG) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part provisions of this Contract Section 2.1(d) shall not relieve the Service Provider survive any termination of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Agreement.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited 1.1 The Corporation hereby places and deposits in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis Escrowed Shares and hereby delivers to the Escrow Agent the certificates identified in Schedule “A” representing the Escrowed Shares. If at any time for any reason a replacement certificate or replacement certificates are issued representing the Escrowed Shares or if the Escrowed Shares are converted or exchanged into shares of another class, series or company, the Corporation shall deliver such replacement certificate or certificates, or the certificates representing the shares in another class, series or new company, to the Escrow Agent. While the Escrowed Shares are in escrow, the Securityholders shall be entitled to all rights as the beneficial and registered owner of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesEscrowed Shares including, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightswithout limitation, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to vote and to receive all dividends and other distributions on the price due to Escrowed Shares.
1.2 The Escrowed Shares and the Service Provider under this Contract subject to: deduction beneficial ownership of sums or any interest in, and the certificates representing, the Escrowed Shares shall not be transferred, gifted, sold, assigned, mortgaged, pledged, hypothecated, alienated, released from escrow, transferred within escrow, or otherwise dealt with in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights any manner except as expressly provided in section 5.
1.3 Each of the Purchaser under this Contract in relation Securityholders hereby directs the Escrow Agent to retain the recovery of sums due but unpaid. The Service Provider must notify Escrowed Shares and the certificates representing the Escrowed Shares and not to do or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases cause anything to be a Government Body shall notdone to release the Escrowed Shares from escrow or to allow any transfer, subject to clause 39.6gift, affect assignment, mortgage, pledge, hypothecation or alienation thereof except as expressly provided in section 5.
1.4 The Corporation hereby acknowledges the validity terms and conditions of this Contract. In such circumstances, this Contract shall bind Agreement and inure agrees to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that facilitate its performance.
1.5 The Corporation shall pay the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify Escrow Agent the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible fees for the acts and omissions of its Sub-contractors acting as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇escrow agent.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
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Escrow. As soon as reasonably practicable following (a) At the Commencement DateClosing, immediately after the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory delivery to the Purchaser Stockholders of certificates for the shares of Envirogen Common Stock to be issued in relation the Merger, (i) the Stockholders shall deliver to Summit Bank as escrow agent (the software and/or documentation agreed "Escrow Agent"), certificates representing the Escrow Shares duly endorsed in blank for transfer by the Parties that is Stockholders and (ii) Envirogen will deliver to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis Escrow Money. The Escrow Shares and the Escrow Money shall be held by the Escrow Agent in escrow pursuant to the terms of this Section 8.02 and the terms of the terms agreed Escrow Agreement, and the Escrow Agent and the Surviving Corporation are hereby granted a security interest in the Escrow Agreement Shares and the Escrow Money, as security for any right to indemnification the Surviving Corporation may have under Section 8.01 hereof and as security for the Stockholders' timely performance of the their obligations under Section 2.05 hereof.
(b) If the Surviving Corporation determines that it is entitled to be indemnified pursuant to Section 8.01 or that an amount is owed pursuant to Section 2.05 hereof, it shall so notify the Stockholders of the nature of the claim and the amount (estimated or actual) of the Loss. Subject to the rights of the Stockholders pursuant to Section 8.02(c) hereof, all amounts payable to the Surviving Corporation pursuant to Sections 8.01 and 2.05 shall be paid first in cash from the Escrow Money and then from the Escrow Shares. The number of Escrow Shares to be transferred to the Surviving Corporation pursuant to this Section 8.02(b) shall equal the remaining amount of the Loss so incurred (after any payments in cash in respect thereof from the Escrow Money) divided by the average of the daily closing prices of a share of Envirogen Common Stock as reported by the Nasdaq SmallCap Market during the period of ten trading days ending on the last trading day prior to the date of receipt by the Stockholders of the notice described in this Section 8.02(b) (the "Average Price"). To the extent that the Surviving Corporation has a right to receive any of the Escrow Shares, it shall give a notice to the Stockholders and the Stockholders may, within the ten (10) day period after such notice, pay to the Escrow Agent cash in an amount equal to the amount of such Loss, and the Escrow Agent shall then in lieu of the transfer of Escrow Shares to the Surviving Corporation pay to the Surviving Corporation cash in the amount of such Loss and release to the Stockholders that number of the Escrow Shares calculated by dividing the amount of cash paid by the Stockholders to the Escrow Agent by the Average Price.
(c) If the Stockholders do not deliver to the Surviving Corporation written objection to the notice described in Section 8.02(b) within twenty (20) business days of after the date of such notice, the amount of loss shall be deemed accepted by the Stockholders and the appropriate number of Escrow Shares and Escrow Money shall become the property of the Surviving Corporation in accordance with Section 8.02(b). If the Stockholders deliver to the Surviving Corporation written notice of objection within such twenty (20) business day period, then the Stockholders and the Surviving Corporation shall, within twenty (20) business days after receipt of such notice of objection, attempt to resolve the dispute. If the Stockholders and the Surviving Corporation fail to do so within said period of time, the matter shall be determined by a court of competent jurisdiction.
(d) All Escrow Shares that have not theretofore been transferred to the Surviving Corporation pursuant to this Section 8.02 shall be delivered by the Escrow Agreement being signed. The Service Provider shall pay Agent to the initial storage feesStockholders promptly after the expiration of the Claims Period; provided that if, at the expiration of the Claims Period, the annual fees and update fees under Surviving Corporation shall have given written notice to the Stockholders of a Loss (actual or potential) hereunder, the Escrow Agreement Agent shall continue to withhold a number of Escrow Shares and Escrow Money in accordance with the Purchaser terms of Section 8.02(b) above as is appropriate, in its reasonable judgment, to satisfy the amount of the Loss. Such Escrow Shares and Escrow Money shall pay continue to be withheld until there has been a final determination as to whether the release fee. Assignation Surviving Corporation has suffered any such Loss.
(e) The Service Provider may Stockholders shall not assign transfer any of its rightsthe Escrow Shares, obligations or interest in this Contract or any part of it without the prior written consent interest therein, or attempt to pledge any of the PurchaserEscrow Shares, so long as the Escrow Shares are held in escrow by the Escrow Agent hereunder.
(f) Unless and until the Escrow Shares become the property of the Surviving Corporation as above provided, each cash dividend declared and paid with respect to such Escrow Shares shall be delivered, as paid, to the Stockholders. Notwithstanding clause 39.1In the case of any stock dividend, stock split, reverse stock split or similar event, the Service Provider may assign additional shares shall be added to another person (an "Assignee") the Escrow Shares. All other rights incident to the Escrow Shares, except as provided for in, or limited by, this Section 8.02, shall be in the Stockholders. With respect to the right to receive vote the price due Escrow Shares, each Stockholder shall have the right to vote the Escrow Shares to the Service Provider under this Contract subject to: deduction extent of sums his pro rata ownership interest in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Escrow Shares.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Merger Agreement (Envirogen Inc)
Escrow. As soon On the Closing Date, Purchaser shall, on behalf of the Equity Sellers, pay to JPMorgan Chase Bank, NA, as reasonably practicable following agent to Purchaser and the Commencement Equity Sellers (the “Escrow Agent”), in immediately available funds, to the account designated by the Escrow Agent, an amount equal to $25,500,000 (the “Escrow Amount”), in accordance with the terms of this Agreement and the Escrow Agreement, which will be executed at the Closing, by and among Purchaser, the Seller Representative and the Escrow Agent (the “Escrow Agreement”). Any payment any Equity Seller is obligated to make (subject to the limitations and exceptions set forth in Section 8.4 and elsewhere in this Agreement) to any Purchaser Indemnified Parties pursuant to this Article VIII (other than in respect of a Leakage, a Fundamental Representation or a breach of any provision of Section 6.6) shall be paid first, to the extent there are sufficient funds in the Escrow Account, by release of funds to the Purchaser Indemnified Parties from the Escrow Account by the Escrow Agent within five (5) Business Days after the date the Seller Representative and Purchaser jointly instruct the Escrow Agent to make such payment and shall accordingly reduce the Escrow Amount and, second, to the extent the Escrow Amount is insufficient to pay any remaining sums due, then such Equity Seller shall be required to pay (subject to the limitations and exceptions set forth in Section 8.4 and elsewhere in this Agreement) all of such additional sums due and owing to the Purchaser Indemnified Parties by wire transfer of immediately available funds within five (5) Business Days after the date of such notice and final determination of the sum due and owing. On the first anniversary of the Closing Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory shall pay to the Purchaser in relation Paying Agent the Minimum Share Percentage of the First Anniversary Release Amount for further payment to the software and/or documentation agreed by the Parties that is to be deposited holders of Covered Shares pro rata in escrow accordance with their respective holdings of Covered Shares (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies amount so paid being referred to as the “TransfereeMinimum Share Release Amount”): ). On the rights of termination first anniversary of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Closing Date, the Seller Representative shall be available provide to the Service Provider in Escrow Agent a written instruction (the event of respectively, “First Anniversary Release Instruction”) directing the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able Escrow Agent to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates release an amount equal to the performance of First Anniversary Release Amount less the Service Provider’s obligations under this Contract. In such circumstances Minimum Share Release Amount (the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change“
Appears in 1 contract
Escrow. As soon as reasonably practicable following (i) Simultaneously with the Commencement Dateexecution and delivery of this Agreement by a Purchaser, the Service Provider such Purchaser shall enter into promptly cause a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser wire transfer of immediately available funds (U.S. dollars) in relation to the software and/or documentation agreed by the Parties that is an amount representing such Purchaser’s Subscription Amount to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 paid to a body which is not a Government Body or if there is a change in the legal status non-interest bearing escrow account of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.▇▇▇
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) in the case of the termination of this Agreement in accordance with Section 6.17, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and in the event of a termination by a Purchaser, the Escrow Agent shall return the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(B) in the case of the Closing, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to the Placement Agent, the fees payable to such Placement Agent (which fees shall be set forth in such instructions), and (2) the balance of the aggregate purchase price to the Company.▇▇
(iii) The Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written instructions from the Company and the Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company and the Placement Agent, each of the responsibilities of the Escrow Agent in clause (A) and awarded following a fair(B) is ministerial in nature, open, transparent and competitive process proportionate to no implied duties or obligations of any kind shall be read into this Agreement against or on the nature and value part of the contractEscrow Agent (collectively, the “Escrow Agent Duties”); includes provisions requiring (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the conduct proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of auditsthe authority of the Person signing or presenting the same; and is (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the same terms as that set out case of Escrow Agent’s gross negligence or willful misconduct in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation breach of the equivalent party as Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(C) The Company hereby indemnifies and holds harmless the Service Provider Escrow Agent from and Sub-contractor as against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the case Escrow Agent may be. The Service Provider shall also include in every Sub-contract: a right for suffer or incur by reason of any action, claim or proceeding brought against the Service Provider Escrow Agent arising out of or relating to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmentalEscrow Agent Duties, social except to the extent such action, claim or employment law or if any proceeding is exclusively the result of the termination events willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. The Purchasers hereby expressly consents to permit the Escrow Agent to represent the Placement Agent in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, the Placement Agent and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of ten (10) calendar days following the effective date of resignation, at which time,
(I) if a successor escrow agent shall have been appointed and have accepted such appointment in clause 64.3 a writing to both the Company and the Purchasers, then upon written notice thereof given to each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or
(Termination RightsII) occur; if a successor escrow agent shall not have been appointed, for any reason whatsoever, the Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and a requirement give written notice thereof to the Company, the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Sub-contractor includes Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a provision having court of competent jurisdiction, joint written instructions from the same effect as clause 41.4.1 Company, the Placement Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in any Sub-contract which it awards. Where requested its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Purchaser, copies Escrow Agent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of any Sub-contract must be sent or in connection with the Escrow Amount. Upon the deposit by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection Escrow Agent of the Sub-contractor which ensures reasonable competition following principles Escrow Amount with the clerk of equal treatmentsuch court in accordance with this provision, non-discrimination the Escrow Agent shall thereupon be relieved of all further obligations and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changereleased from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Optimer Pharmaceuticals Inc)
Escrow. As soon as reasonably practicable following The Escrowed Shares, when initially issued, shall be issued to the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to as nominee of the Purchaser in relation to the software and/or documentation agreed by the Parties that is JBSI Stockholders, such shares to be deposited in an escrow (the “Escrowed Material”)account. The Service Provider Escrowed Shares shall deposit be allocated against the number of shares of EBIZ Common Stock to which each JBSI Stockholder is entitled on a pro rata basis in accordance with the relative Applicable Stock Percentage of each JBSI Stockholder. The Escrowed Material with Shares shall be held by the Escrow Agent on in escrow, and shall be transferred or released by the basis Escrow Agent only as follows. If no Notice of Claim is submitted by the EBIZ Designated Representative to the JBSI Designated Representative within the applicable time period provided in Section 11.4(a), then the Escrow Agent shall promptly transfer all of the terms agreed Escrowed Shares to the JBSI Stockholders on a pro rata basis in accordance with the relative Applicable Stock Percentage of each JBSI Stockholder. If a Notice of Claim is submitted by the EBIZ Designated Representative to the JBSI Designated Representative within the applicable time period provided in Section 11.4(a), then the Escrow Agreement within ten (10) days Agent shall hold the Escrowed Shares until the first to occur of the date issuance of a Final Decision or the waiver and release by EBIZ of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign Indemnification Claims to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right Notice of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the PurchaserClaim relates. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of Final Decision results in EBIZ being entitled to no payment pursuant to clause 39.4 to a body which is not a Government Body this Article 11 or if there is a change in EBIZ waives and releases its Indemnification Claims, then the legal status Escrow Agent shall promptly transfer all of the Purchaser Escrowed Shares to the JBSI Stockholders on a pro rata basis in accordance with the relative Applicable Stock Percentage of each JBSI Stockholder. If, however, pursuant to the Final Decision it is determined that EBIZ is entitled pursuant to this Article 11 to receive payment with respect to its Indemnification Claims, then the Escrow Agent shall transfer to EBIZ on the Due Date such number of Escrowed Shares as have an aggregate EBIZ Share Value equal to the amount of such payment and shall transfer all of the remaining Escrowed Shares to the JBSI Stockholders on a pro rata basis in accordance with the relative Applicable Stock Percentage of each JBSI Stockholder. Any JBSI Stockholder may, but shall not be required, to redeem any Escrowed Shares allocable to him that it ceases are required to be a Government Body transferred to EBIZ pursuant to this subsection (in f) by paying to the remainder Escrow Agent, prior to the transfer thereof to EBIZ, the EBIZ Share Value of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Escrowed Shares. Any Escrowed Shares that are so redeemed shall be available transferred to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; redeeming JBSI Stockholder and the Transferee shall only be able cash paid to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In redeem such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider Escrowed Shares shall be responsible for the acts and omissions paid, in lieu of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services thenshares, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇EBIZ.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) Company shall cause each Member listed on Schedule 7.3 to enter into the Commencement Date, the Service Provider Escrow Agreement.
(b) Parent shall enter into a standard form the Escrow Agreement with a reputable Escrow Agent satisfactory to Agreement.
(c) At the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider Closing, Parent shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days Amount without the necessity of the date of any action at such time on such Member's part. The Escrow Agent will hold the Escrow Agreement being signedAmount for application or release as set forth in this Agreement, the Indemnification agreement and the Escrow Agreement. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Amount shall be available to compensate Parent and the Service Provider Surviving Corporation and their respective affiliates for any claims, losses, liabilities, damages, deficiencies, costs and expenses, including attorneys' fees and expenses, and expenses of investigation and defense (individually a "Loss" and collectively "Losses") incurred by Parent or the Surviving Corporation, their respective officers, directors, or affiliates as a result of
(i) any breach of a representation or warranty of Company contained herein, or (ii) any failure by Company to perform or comply with any covenant contained herein. Parent and Company each acknowledge that such Losses, if any, would relate to unresolved contingencies existing at the Closing, which if resolved at the Closing would have led to a reduction in the event of respectivelyaggregate consideration paid to the Members by Parent.
(d) Escrow Agent shall release the Escrow Amount on the date that is 13 months after the Closing Date (the period from the Closing Date to such date, the bankruptcy "Escrow Period"); provided, however, that if one or insolvency, more claims has been made or Default is pending at the end of the Transferee; Escrow Period, the Escrow Agent shall retain in the Escrow Account shares of Parent Common Stock and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates Cash Amount that have a value equal to the performance aggregate amount of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use pending claims, until such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors claims have been finally resolved as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeIndemnification Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Argonaut Technologies Inc)
Escrow. As soon as reasonably practicable following At the Commencement Date, Closing the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider parties shall deposit the Escrowed Material $1,200,000 in cash (such cash, together with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser earnings thereon is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “TransfereeEscrow Cash”): ), deducted from the rights of termination total Merger Consideration otherwise payable to each of the Purchaser shareholders of ProMed Company on a pro-rata basis, in clauses 64 an escrow account (Termination Rights“Indemnification Escrow Account”) to be held in such Indemnification Escrow Agreement during the period ending two (2) years from the Effective Date (“Escrow Period”), pursuant to the terms of an escrow agreement (“Escrow Agreement”) negotiated prior to the Closing by ProMed Company, the Representative (as defined in Section 1.16(a) and 65 Holdings, with an escrow agent mutually acceptable to the parties (Termination on Insolvency or Change “Escrow Agent”). The Indemnification Escrow shall provide a source of Controlfunds for the indemnity obligations set forth in Section 7.2(a) of this Agreement and, to the extent provided in Section 7.6, the indemnity obligations set forth in Section 7.2(a) of the agreement and plan of reorganization for the ProMed Pomona Acquisition (the “ProMed Pomona Acquisition Agreement”). The Indemnification Escrow Account established pursuant to this Section 1.15 and the indemnification escrow account established pursuant to Section 1.15 of the ProMed Pomona Acquisition Agreement shall be available collectively referred to as the “Indemnification Escrow Fund”. Except for those claims set forth in Sections 7.2(b) and Section 7.4 of the Agreement and Sections 7.2(b) and 7.4 of the ProMed Pomona Acquisition Agreement, the Indemnification Escrow Fund shall be the exclusive source of indemnity funds for claims of Holdings, Holdings Subsidiary and Surviving Corporation or their respective directors, officers, employees, agents and affiliates. Subject to Article 7, (i) on the first business day following the first anniversary of the Effective Date, the Escrow Agent shall deliver 25% of the Escrow Cash in the Indemnification Escrow Account, less any such amounts applied in satisfaction of a claim for indemnification and any amounts reserved against pending claims related to the Service Provider indemnification obligations set forth in Article 7 and claims related to the indemnification obligations in the event ProMed Pomona Acquisition, to each of respectivelyProMed Company’s former shareholders, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates after giving effect to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 Merger (Approved Sub-contractors“Former Shareholders”) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms proportions as that set out initially deposited in this clause 41.3 the Indemnification Escrow Account, and (including this clause 41.3.5 subject only to modification to refer ii) on the first business day following the conclusion of the Escrow Period, the Escrow Agent shall deliver the remaining Escrow Cash in the Indemnification Escrow Account, less any such amounts applied in satisfaction of a claim for indemnification and any amounts reserved against pending claims related to the correct designation of indemnification obligations set forth in Article 7 and claims related to the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal indemnification obligations in the fields of environmentalProMed Pomona Acquisition, social or employment law or if any to each of the termination events specified Former Shareholders in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect proportions as clause 41.4.1 initially deposited in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeIndemnification Escrow Account.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Prospect Medical Holdings Inc)
Escrow. As soon as reasonably practicable following The Parties agree:
(a) upon execution of this Agreement and the Commencement DateExchange Agreement, to authorize Parent to deliver to the Escrow Agent, for deposit into the Escrow, 20,000,000 Escrow Shares and to authorize the Escrow Agent to hold in the Escrow on behalf of each Shareholder that number of Escrow Shares set forth opposite such Shareholder’s name on Schedule A hereto, subject to adjustment pursuant to Section 2(d) of this Agreement.
(b) thereafter, to authorize Parent to deliver to the Escrow Agent for deposit into the Escrow any cash and non-cash dividends and other property at any time received or otherwise distributed on, in respect of, or in exchange for, any or all of the foregoing, all securities hereafter issued in substitution for any of the foregoing, all certificates and instruments representing or evidencing such securities, all cash and non-cash proceeds of all of the foregoing property and all rights, titles, interest, privileges and preferences appertaining or incident to the Escrow Shares (each, an “Escrow Share Distribution” and together with the Escrow Shares, the Service Provider shall enter into a standard form “Escrow Agreement with a reputable Property”).
(c) to authorize the Escrow Agent satisfactory to release one-sixth (1/6) of the Escrow Shares to the Purchaser Shareholders, on a pro-rata basis, for every AU$1,000,000 in relation Financing raised by Parent at a price per share equal to or greater than the software and/or documentation agreed by the Parties that is to be deposited in escrow Price Requirement (the “Escrowed MaterialFinancing Release”). The Service Provider shall deposit the Escrowed Material with .
(d) to authorize the Escrow Agent on the basis to release to Parent for cancellation, such Shareholder’s pro rata amount of the terms agreed in total number of Escrow Shares to be cancelled (the Escrow Agreement within ten (10) days of the date “Cancelled Shares”), based upon such Shareholder’s proportionate share of the Escrow Agreement being signedShares, and a pro rata percentage of any Escrow Share Distribution (if any) to be cancelled in the event that, within three years from the Closing Date (as defined in the Exchange Agreement), Parent consummates one or more Financings at a price per share that is less than the Price Requirement. The Service Provider total number of Cancelled Shares shall pay be calculated as follows: X = Y - (A)(Y) Where X = the initial storage feesnumber of Escrow Shares to be released for cancellation by Parent. Y = the number of shares of Parent Common Stock (and/or Parent Common Stock acquirable upon exercise or conversion of securities issued in the Financing.) A = the price per share of Parent Common Stock (and/or Parent Common Stock acquirable upon exercise or conversion of securities issued in the Financing) issued in the Financing, converted into Australian dollars in accordance with Section 1(d) below, if applicable. B = Price Requirement.
(e) after three years from the Closing Date (as defined in the Exchange Agreement), to authorize the Escrow Agent to release to the Shareholders any remaining Escrow Shares, after giving effect to the Financing Release, if applicable.
(f) for the purposes of this Agreement, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any purchase price per share of its rights, obligations or interest Parent Common Stock for a financing conducted in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person a currency other than Australian dollars (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “TransfereeForeign Currency”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to converted into Australian dollars based on the Service Provider in the event rate of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible exchange for the acts and omissions conversion of its Sub-contractors such Foreign Currency into Australian dollars as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due quoted by the Service Provider to Reserve Bank of Australia on the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt closing date of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇financing.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) Employee hereby authorizes and directs the Commencement Datesecretary of the Company, or such other person designated by the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Company from time to time, to transfer any Unreleased Shares which are forfeited pursuant to Section 2 above from Employee to the Purchaser in relation to Company.
(b) To insure the software and/or documentation agreed by availability for delivery of Employee’s Unreleased Shares upon forfeiture under Section 2, Employee hereby appoints the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feessecretary, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established person designated by the Crown or under statute in order substantially Company as escrow agent from time to perform any time, as its attorney-in-fact to sell, assign and transfer unto the Company, such Unreleased Shares, if any, forfeited by Employee pursuant to Section 2 and shall, upon execution of this Agreement, deliver and deposit with the secretary of the functions that had previously been performed Company, or such other person designated by the Purchaser; or any private sector body which substantially performs Company, the functions share certificate(s) representing the Unreleased Shares, together with the stock assignment duly endorsed in blank, attached hereto as Exhibit A. The Unreleased Shares and stock assignment shall be held by the secretary in escrow, pursuant to the Joint Escrow Instructions of the PurchaserCompany and Employee attached as Exhibit B hereto, until the Shares are forfeited as provided in Section 2, until such Unreleased Shares are fully released from the Forfeiture Restriction, or until such time as this Agreement no longer is in effect. Upon release of the Unreleased Shares from the Forfeiture Restriction, the escrow agent shall promptly deliver to Employee the certificate or certificates representing such Shares in the escrow agent’s possession belonging to Employee, and the escrow agent shall be discharged of all further obligations hereunder; provided, however, that the escrow agent shall nevertheless retain such certificate or certificates as escrow agent if so required pursuant to other restrictions imposed pursuant to this Agreement. If any such assignation, novation assets or other disposal securities received by or distributed to Employee with respect to, in exchange for or in substitution of such Unreleased Shares are held by the escrow agent pursuant to this Section 3(b) and the Joint Escrow Instructions, such assets or other securities shall also be subject to the restrictions set forth in this Agreement and held in escrow pending release of the Unreleased Shares with respect to which such assets or other securities relate from the Forfeiture Restriction (or, if such Unreleased Shares are no longer outstanding, until such time as such Unreleased Shares would have been released from the Company’s Repurchase Option pursuant to this Agreement).
(c) The Company, or its designee, shall not increase be liable for any act it may do or omit to do with respect to holding the burden of the Service Provider’s obligations under this Contract. Any change Shares in escrow and while acting in good faith and in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose exercise of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇judgment.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement sole remedy for the indemnification obligations set forth in Article VII of this Agreement, an aggregate number of shares of Ascend Common Stock to be received by the holders of Andover Games Membership Units, allocated pro rata amongst such holders, representing five percent (5%) of the shares of Ascend Common Stock to be outstanding immediately after the Closing Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in into escrow (the “Escrowed MaterialEscrow Shares), in accordance with the terms and conditions of the escrow agreement to be entered into at the Closing between Ascend, the Committee (defined below), the Representative (defined below) and Continental Stock Transfer & Trust Company (“CST&T”), as escrow agent (“Escrow Agent”), in form and substance mutually and reasonably agreed to by Ascend and Andover Games and providing for the terms contemplated by Article VII hereof (the “Escrow Agreement”). The Service Provider Escrow Agreement shall deposit provide that, on the Escrowed Material 5th business day after Ascend has filed with the SEC its Annual Report on Form 10-K for the fiscal year ending December 31, 2011 (the “Escrow Release Date”), the Escrow Agent shall release the Escrow Shares, less that portion thereof applied in satisfaction of or reserved with respect to indemnification claims in connection with claims made pursuant to Section 7.1(a) of this Agreement (“Escrow Claims”). Any Escrow Shares due to be released on the basis Escrow Release Date that continue to be held with respect to any unresolved Escrow Claim shall be delivered to the stockholders of the terms agreed Andover Games in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feessame proportions as originally deposited into escrow, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of promptly upon such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall notresolution, subject to clause 39.6reduction, affect the validity of this Contract. In such circumstancesif any, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to indemnification obligation associated with such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇resolved Escrow Claim.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) On the Commencement Closing Date, the Service Provider Escrow Amount shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material by Buyer with the Escrow Agent on and the basis Escrow Amount (including any investment proceeds thereon) shall remain with the Escrow Agent from the Closing Date until such Escrow Amount is released to either Seller or Buyer pursuant to Section 2.5(b) in accordance with the requirements of the terms agreed Escrow Agreement.
(b) Following the Closing Date and upon entry of a Final Judgment in connection with the Boston Project Tax Audit, Buyer shall deliver a copy of such Final Judgment, along with any additional certificate required under the Escrow Agreement within ten Agreement, to the Escrow Agent and Seller, and Buyer and Seller shall promptly (10and in no event later than three (3) days Business Days following delivery of such Final Judgement) jointly instruct the date Escrow Agent to release (i) to Buyer by wire transfer of immediately available funds to an account identified by Buyer in accordance with the requirements of the Escrow Agreement the amount so determined by such Final Judgment as being signed. The Service Provider owed by any Buyer Indemnitee or Group Company in connection with the Boston Project Tax Audit and subject to the provisions of Section 2.5(c), (ii) to Seller by wire transfer of immediately available funds to an account identified by Seller in accordance with the requirements of the Escrow Agreement the balance remaining in the Escrow Account, if any.
(c) Following the Closing Date and upon entry of a Final Judgment in connection with the Live Oak Bank Tax Audit, Buyer shall pay the initial storage feesdeliver a copy of such Final Judgment, the annual fees and update fees along with any additional certificate required under the Escrow Agreement, to the Escrow Agent and Seller, and Buyer and Seller shall promptly (and in no event later than three (3) Business Days following delivery of such Final Judgement) jointly instruct the Escrow Agent to release (i) to Buyer by wire transfer of immediately available funds to an account identified by Buyer in accordance with the requirements of the Escrow Agreement the amount so determined by such Final Judgment as being owed by any Buyer Indemnitee or Group Company in connection with the Live Oak Bank Tax Audit and subject to the provisions of Section 2.5(b), (ii) to Seller by wire transfer of immediately available funds to an account identified by Seller in accordance with the requirements of the Escrow Agreement the balance remaining in the Escrow Account, if any.
(d) If, at any time following the Closing Date, the balance in the Escrow Account is less than the Escrow Amount and the Purchaser shall pay Seller receives payments on the release fee. Assignation The Service Provider may not assign any of its rights, obligations Promissory Notes or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1an Earnout Amount, the Service Provider may assign Seller shall immediately use the payment received to another person (an "Assignee") replenish the right to receive the price due Escrow Account balance to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Escrow Amount.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Alternus Clean Energy, Inc.)
Escrow. As soon as reasonably practicable following (i) Simultaneously with the Commencement Dateclosing of the Business Combination, GigCapital4 shall deposit, for good and valuable consideration, the Service Provider shall enter receipt, sufficiency and adequacy of which GigCapital4 hereby acknowledges, into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in an escrow account (the “Escrowed MaterialEscrow Account”) with Continental Stock Transfer & Trust Company (the “Escrow Agent”), subject to the terms of a written escrow agreement (the “Escrow Agreement”) substantially in the form attached as Exhibit A hereto and to be entered into prior to the Redemption Date, an amount equal to the lesser of (x) $25,375,000 and (y) $10.15 multiplied by the number of Shares and Additional Shares held by the Investors as of the closing of the Business Combination. Concurrently with the execution of the Escrow Agreement, the Company shall provide irrevocable written instructions to the Escrow Agent to release from the Escrow Account the aggregate Shares Purchase Price in accordance with Section 1 and the aggregate Early Sales Premium in accordance Section 4(d). The Service Provider shall deposit payments to be made by the Escrowed Material Company to each Investor in accordance with Section 1 or Section 4(d), if applicable, will be made solely with funds from the Escrow Account.
(ii) In the event that any Investor sells any Shares (including any Additional Shares) as provided in Section 4(d), upon receipt by the Company and the Escrow Agent on of an Open Market Sale Notice, the basis Escrow Agent shall release from the Escrow Account to the Company for the Company’s use without restriction an aggregate amount equal to the number of Shares (including any Additional Shares) sold multiplied by $10.15; provided that if an Investor sold any Early Sale Shares, within five (5) Business Days of the terms agreed Company’s and the Escrow Agent’s receipt of the applicable Open Market Sale Notice, the Escrow Agent shall release from the Escrow Account (a) for the selling Investor’s use without restriction an amount equal to the Early Sale Premium with respect to the Early Sale Shares sold by such Investor, and (b) for the Company’s use without restriction an amount equal to the number of Early Sale Shares sold in the Escrow Agreement within ten Early Sale multiplied by $10.10.
(10iii) days of In the date of event that any Investor elects not to sell to the Company any Shares (including any Additional Shares) held by such Investor by either (A) delivering a written notice to the Escrow Agreement being signed. The Service Provider shall pay Agent stating such Investor’s intention not to sell any Shares (or any Additional Shares) to the initial storage feesEscrow Agent, or (B) such Investor failing to timely deliver a Shares Sale Notice to the Company pursuant to Section 1(a) for all of its Shares, the annual fees and update fees under Escrow Agent shall release from the Escrow Agreement and Account to the Purchaser shall pay Company for the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it Company’s use without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign restriction an amount equal to another person (an "Assignee"x) $10.15 multiplied by (y) the right to receive the price due to the Service Provider under this Contract subject to: deduction number of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of Shares held by such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Investor.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Forward Share Purchase Agreement (GigCapital4, Inc.)
Escrow. As soon as reasonably practicable following (a) On the Commencement Closing Date, the Service Provider Buyer shall enter into deliver to the Escrow Agent a standard form certificate (issued in the name of the Escrow Agent or its nominee) representing the Escrow Shares, as described in Section 1.5, for the purpose of securing the indemnification obligations of the Indemnifying Stockholders (as defined in Section 6.1) set forth in this Agreement. The Escrow Shares shall be held by the Escrow Agent under, and disbursed in accordance with, the Escrow Agreement pursuant to the terms thereof. The Escrow Agreement shall provide that one-third of the Escrow Shares shall be released from escrow six months after the Closing Date and the remaining Escrow Shares will be released from escrow on the first anniversary of the Closing Date, subject in each case to the delivery of notice of a Dispute pursuant to Article VI below and the terms of the Escrow Agreement; provided, however, that (i) Escrow Shares with a reputable Escrow Agent satisfactory to Value (as defined -------- ------- below) of UK(Pounds)200,000 shall be held in escrow until the Purchaser in relation to the software and/or documentation agreed by the Parties date that is ten business days after the eighteen month anniversary of the consummation of the Company's disposition of Interglobe Telecommunications (International) plc, pursuant to an Agreement between the Company and Redstone Telecom plc dated February 24, 2000 (the "Interglobe Agreement") for the purpose of securing the indemnification obligations of the Indemnifying Stockholders with respect to Section 6.1(e) and (ii) Escrow Shares with a Value of $1,000,000 shall be deposited held in escrow until two years after the Closing Date for the purpose of securing the indemnification obligations of the Indemnifying Stockholders with respect to Section 6.1(e) and breaches of the representations and warranties of the Company set forth in Section 2.9 (and the “Escrowed Material”portion of the Company Certificate pertaining thereto). The Service Provider Escrow Shares shall deposit be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of any party, and shall be held and disbursed solely for the Escrowed Material purposes and in accordance with the Escrow Agent on the basis terms of the terms agreed in Escrow Agreement.
(b) The adoption of this Agreement and the Escrow Agreement within ten (10) days approval of the date Merger by the Company Stockholders shall constitute approval by the Company Stockholders voting to approve the Merger of the Escrow Agreement being signed. The Service Provider shall pay and of all of the initial storage feesarrangements relating thereto, including without limitation the annual fees and update fees under placement of the Escrow Agreement Shares in escrow and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Indemnification Representatives.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following 11.1. On the Commencement Closing Date, Company will deposit the Service Provider shall enter into a standard form sum of (i) the Base Escrow Agreement Amount (hereinafter defined) plus (ii) the Environmental Escrow Amount (as defined in Section 13.3), if any (collectively the "Escrow Amount") with a reputable Escrow Agent satisfactory an escrow agent to be held and disbursed by such escrow agent pursuant to the Purchaser terms and conditions of an escrow agreement in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow form of Exhibit 11.1 attached hereto and made a part hereof (the “Escrowed Material”"Escrow Agreement"). The Service Provider shall Escrow Agreement will direct the escrow agent to deposit the Escrowed Material Escrow Amount in an interest-bearing account, and so long as Buyer has filed no claim against Company to pay the interest to Company quarterly. Should a claim be filed the interest earned thereafter will not be distributed but will remain with the Escrow Agent on Amount until the basis claim is resolved. The Escrow Amount shall secure, in part, the performance of Company's covenants and agreements under or pursuant to, and the accuracy of the terms agreed in the Escrow Agreement within ten (10) days representations and warranties made by Company in, this Agreement, including, without limitation any indemnity provided by Company pursuant to Section 13.3. Should Buyer assert a claim against Company for breach of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rightsCompany's representations, obligations warranties, covenants, indemnities or interest in agreements under this Contract Agreement (an "Eligible Claim"), Company and Buyer may by joint written notice direct the escrow agent to disburse all or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign Escrow Amount to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums Buyer in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights such Eligible Claim. Otherwise, Buyer shall be entitled to receive disbursements of the Purchaser under this Contract Escrow Amount only as provided in relation Section 4(b) of the Escrow Agreement. Provided no Eligible Claim has been filed and is then pending in a court of competent jurisdiction and provided the Escrow Amount does not then include an Environmental Escrow Amount, (i) on the first (1st) anniversary of the Closing Date, fifty percent (50%) of the Base Escrow Amount shall be released to Company, (ii) on the recovery second (2nd) anniversary of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser Closing Date, fifty percent (50%) of any variations the then remaining Base Escrow Amount shall be released to Company and (iii) on the arrangements for making payments or for handling invoicesthird (3rd) anniversary of the Closing Date, in each case in good time the then remaining Base Escrow Amount shall be released to enable the Purchaser to redirect payments or invoices accordinglyCompany. In the absence event of such notification an Eligible Claim arising under an Objection Notice under Section 13.3 Company shall promptly engage qualified third parties for remediation and Buyer shall join Company in giving instructions to the Purchaser Escrow Agent for the payment of the third parties' costs and expenses arising from the remediation. If an Eligible Claim is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract pending or any part thereof to: any Government Body; or any other body established by matter as to which Company has deposited the Crown or under statute in order substantially Environmental Escrow Amount has not been fully resolved and cured to perform Buyer's reasonable satisfaction on any of the functions that had previously been performed by foregoing dates, a portion of the Purchaser; Escrow Amount sufficient to resolve the open Eligible Claim shall not be released to Company until final resolution of all such Eligible Claims. Upon final resolution of all Eligible Claims, Company shall be entitled to receive any remaining balance of the Escrow Amount. Buyer's right to recover all or any private sector body which substantially performs the functions portion of the Purchaser, provided that any such assignation, novation or other disposal Escrow Amount shall not increase the burden of the Service Provider’s obligations under this Contract. Any change be in the legal status of the Purchaser such that it ceases addition to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit cumulative of any successor body other right or remedy available to Buyer under the Purchaser. If the rights and obligations under this Contract are assigned, novated Agreement or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider Buyer at law or in the event of respectivelyequity. As used herein, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee term "Base Escrow Amount" shall only be able mean an amount equal to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 Three Million Six Hundred Fifty Thousand Dollars (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇$3,650,000).▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) A portion of the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Merger Consideration issuable pursuant to Section 1.6 hereof in respect of shares of Company Capital Stock issued and outstanding immediately prior to the Purchaser in relation Effective Time of the Merger (excluding Dissenting Shares) equal to the software and/or documentation agreed by Escrow Stock Percentage in the Parties that is to case of Merger Stock and the Escrow Cash Percentage in the case of Merger Cash, will, without any act of any Company Shareholder, be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on (such deposited amount, the basis of “Escrow Amount”), such deposit to constitute the Escrow Fund to be governed by the terms agreed of Article 7 (such shares of Parent Common Stock and cash deposited in the Escrow Agreement within ten Fund, the “Escrow Shares” and the “Escrow Cash,” respectively). The portion of the Escrow Shares and Escrow Cash, respectively, contributed by each Company Shareholder shall be based on the proportion that the Merger Cash and the Merger Stock to be issued to such Company Shareholder in respect of shares of Company Capital Stock held by such Company Shareholder immediately prior to the Effective Time of the Merger bears to the aggregate Merger Cash and Merger Stock to be issued in respect of all shares of Company Capital Stock issued and outstanding immediately prior to the Effective Time of the Merger (10) days excluding Dissenting Shares). Set forth opposite each Company Shareholder’s name in Schedule 1.8 delivered prior to the Closing is a preliminary schedule showing the Escrow Shares and Escrow Cash to be contributed by each such Company Shareholder, subject to adjustment for Vesting of Company Options and other occurrences between the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow this Agreement and the Purchaser shall pay Closing Date that affect allocation of Merger Consideration, and adjustment as a result of Dissenting Shares.
(b) With respect to Dissenting Shares, a portion of any amount deemed payable to such dissenting Company Shareholders pursuant to Chapter 13 of California Law equal to the release fee. Assignation The Service Provider may not assign any Escrow Percentage shall, upon the conclusion of its rightssuch process and to the extent consistent with California Law, obligations or interest in be withheld by Parent and deposited with the Escrow Agent pursuant to the terms of this Contract or any part of it without Section 1.8(c) (provided, however, that such amount be decreased proportionately if Escrow Shares and Escrow Cash have previously been released from the prior written consent Escrow Fund to Company Shareholders pursuant to the terms hereof).
(c) As soon as practicable after the Effective Time of the Purchaser. Notwithstanding clause 39.1Merger, and subject to and in accordance with the Service Provider may assign provisions of Article 7 hereof, Parent shall cause to another person (an "Assignee") the right to receive the price due be distributed to the Service Provider under this Contract subject to: deduction Escrow Agent (i) a certificate or certificates representing the aggregate number of sums shares of Parent Common Stock included in respect of the Escrow Shares, which shall be registered in the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights name of the Purchaser under this Contract Escrow Agent and (Y) a wire transfer in relation to the recovery amount of sums due but unpaidthe aggregate amount of Escrow Cash. Such shares and cash deposited in the Escrow Fund shall be beneficially owned by the holders on whose behalf such shares and cash were deposited in the Escrow Fund. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change Merger Consideration deposited in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Escrow Fund shall be available to the Service Provider compensate Parent as provided in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Article 7.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Merger Agreement (Google Inc.)
Escrow. As soon as reasonably practicable following the Commencement Date5.1 Upon execution of this Third Amendment, the Service Provider IDEC shall enter into a standard form Escrow Agreement establish an escrow account with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow Union Bank of California, N.A. (the “Escrowed Material”"Escrow"). The Service Provider Each party including Escrow shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in execute and abide by the Escrow Agreement within ten (10) days attached hereto as Attachment 2. IDEC shall, as set forth in Section 5.2, 5.3 and 5.4 below, deposit funds into Escrow to ensure payment to Nordion of the minimum purchase commitment under the Agreement as well as IDEC's obligation to [CONFIDENTIAL TREATMENT REQUESTED] of this Third Amendment, or as otherwise set forth below. The cost of establishing and maintaining the Escrow shall be shared by IDEC and Nordion equally. IDEC shall have the right to direct Escrow to invest the funds in accordance with the investment guidelines attached hereto as Attachment 3. Subject to the terms of this Third Amendment, IDEC shall receive the full benefit of investment returns paid on funds in Escrow. Investment returns may be drawn by IDEC, in accordance with this Third Amendment, from Escrow on a quarterly basis.
5.2 Upon execution of this Third Amendment, IDEC shall deposit an amount equal to [CONFIDENTIAL TREATMENT REQUESTED] associated with [CONFIDENTIAL TREATMENT REQUESTED] (as such [CONFIDENTIAL TREATMENT REQUESTED] and amounts are defined in Attachment 4 hereto).
5.3 IDEC shall make additional deposits into Escrow equal to the [CONFIDENTIAL TREATMENT REQUESTED] associated with [CONFIDENTIAL TREATMENT REQUESTED] as defined in Attachment 4. For purposes of IDEC's obligations hereunder, Nordion and IDEC agree that the deposits set forth in Attachment 4 [CONFIDENTIAL TREATMENT REQUESTED]. Nordion shall notify IDEC in writing not less than [CONFIDENTIAL TREATMENT REQUESTED] prior to the anticipated commencement of the work associated with each [CONFIDENTIAL TREATMENT REQUESTED]. During the [CONFIDENTIAL TREATMENT REQUESTED] prior to each anticipated commencement date, IDEC shall have the right to inspect the work in progress to determine if the work associated with [CONFIDENTIAL TREATMENT REQUESTED] is imminent and appropriate based on work completed. IDEC shall notify Nordion in writing not less than [CONFIDENTIAL TREATMENT REQUESTED] prior to each anticipated commencement date if IDEC in its reasonable discretion determines that the work to date is materially deficient or if commencement of work associated with [CONFIDENTIAL TREATMENT REQUESTED] is not imminent. If IDEC fails to so notify Nordion, IDEC shall make the requisite deposit into Escrow on or prior to the anticipated commencement date of the [CONFIDENTIAL TREATMENT REQUESTED]. Any notice by IDEC under this Section 5.3 shall include a detailed explanation of the reasons why the amount associated with the [CONFIDENTIAL TREATMENT REQUESTED]is not yet payable to Nordion pursuant to this Section 5.3. Upon receipt of such notice, if any, Nordion shall commence cure of any deficiency noted and shall notify IDEC upon completion. IDEC shall have [CONFIDENTIAL TREATMENT REQUESTED] following such notice to inspect the work and to determine if the work associated with the [CONFIDENTIAL TREATMENT REQUESTED] is imminent and appropriate. On or prior to expiration of such [CONFIDENTIAL TREATMENT REQUESTED] period, IDEC shall notify Nordion if IDEC in its reasonable discretion determines that the work remains materially deficient or if commencement of work associated with the [CONFIDENTIAL TREATMENT REQUESTED] is not imminent. If IDEC fails to so notify Nordion, IDEC shall make the requisite deposit into Escrow on or prior to the end of such [CONFIDENTIAL TREATMENT REQUESTED] period. Upon receipt of any notice under this second paragraph of Section 5.3, Nordion shall commence cure of any deficiency noted and reimburse IDEC for its reasonable travel and other out-of-pocket expenses including the reasonable expenses and costs of any expert retained by IDEC to review Nordion's work. Nordion shall notify IDEC upon completion of the work and the [CONFIDENTIAL TREATMENT REQUESTED] inspection period described above shall repeat itself until the work is completed. In the event IDEC fails to make a requisite deposit into the Escrow in accordance with this Section 5.3, Nordion shall, on [CONFIDENTIAL TREATMENT REQUESTED] prior written notice to IDEC and Escrow, and provided IDEC has not cured such failure within such [CONFIDENTIAL TREATMENT REQUESTED], be entitled to [CONFIDENTIAL TREATMENT REQUESTED].
5.4 After the later of (i) BLA approval or (ii) the date Nordion is capable of commercially supplying Isotope from the KRMF Facility, IDEC shall then deposit into Escrow [CONFIDENTIAL TREATMENT REQUESTED] to ensure payment to Nordion of the [CONFIDENTIAL TREATMENT REQUESTED] under the Agreement. In the event IDEC fails to make the requisite deposit into the Escrow in accordance with this Section 5.4, Nordion CONFIDENTIAL TREATMENT REQUESTED shall, upon [CONFIDENTIAL TREATMENT REQUESTED] prior written notice to IDEC and Escrow, and provided IDEC has not cured such failure within such [CONFIDENTIAL TREATMENT REQUESTED] period, be entitled to withdraw and retain all sums in Escrow (excluding investment returns), as reconciled pursuant to Section 5.6 below, and Section 2 of the Second Amendment shall be reinstated and Sections 2.1 -- 2.5, 3,1 -- 34, 4.1 -- 4.4, 5.1--5.13 and 7.4 of this Third Amendment shall no longer be applicable.
5.5 For the purposes of Sections 5.1, 5.2, 5.3 and 54 above, the remedial provisions of Section 17.4 of the Agreement being signedshall not apply to any breach of these Sections by IDEC.
5.6 Notwithstanding anything to the contrary set forth in Sections 5.2, 5.3 and 54 of this Third Amendment, IDEC and Nordion agree that the amount in Escrow at any time during the term of this Agreement shall not exceed [CONFIDENTIAL TREATMENT REQUESTED], as the same may be adjusted pursuant to Sections 3.3 and 3.4 above, minus cumulative [CONFIDENTIAL TREATMENT REQUESTED]. The Service Provider On the earlier of (i) the date IDEC would otherwise be required to deposit [CONFIDENTIAL TREATMENT REQUESTED] into Escrow under Section 5.4 above or [CONFIDENTIAL TREATMENT REQUESTED] plus (b) the amounts deposited into Escrow under Sections 5.2 and 5.3 exceed [CONFIDENTIAL TREATMENT REQUESTED] as the same may be adjusted pursuant to Sections 3.3 and 3.4, IDEC and Nordion shall pay meet to reconcile the amount in Escrow against the amount required to be in Escrow under this Third Amendment. Any amount held in Escrow which exceeds the amount required under this Third Amendment shall be immediately disbursed to IDEC. IDEC and Nordion shall also meet not less than each calendar quarter following the initial storage feesreconciliation to reconcile the amount in Escrow against the amount required in Escrow and any amount then held in Escrow which exceeds the amount required under this Third Amendment shall be immediately disbursed to IDEC. For example, if [CONFIDENTIAL TREATMENT REQUESTED] was [CONFIDENTIAL TREATMENT REQUESTED], the annual fees amount deposited in Escrow under Sections 5.2 and update fees under the Escrow Agreement 5.3 was [CONFIDENTIAL TREATMENT REQUESTED], [CONFIDENTIAL TREATMENT REQUESTED] was [CONFIDENTIAL TREATMENT REQUESTED, and the Purchaser shall pay [CONFIDENTIAL TREATMENT REQUESTED] had yet to be established, then upon reconciliation, IDEC would be entitled to withdraw [CONFIDENTIAL TREATMENT REQUESTED] from Escrow. (The amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the release fee[CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Assignation Continuing this example, if during the period until the next reconciliation the [CONFIDENTIAL TREATMENT REQUESTED] requirement was reduced CONFIDENTIAL TREATMENT REQUESTED by [CONFIDENTIAL TREATMENT REQUESTED] pursuant to Section 3.3 of this Third Amendment and [CONFIDENTIAL TREATMENT REQUESTED] increased by [CONFIDENTIAL TREATMENT REQUESTED], IDEC would be entitled to withdraw [CONFIDENTIAL TREATMENT REQUESTED] from Escrow upon the next reconciliation. (The Service Provider may amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Further continuing this example, if the next reconciliation occurs on thc date IDEC would otherwise be required to deposit [CONFIDENTIAL TREATMENT REQUESTED] into Escrow under Section 5.4 of this Third Amendment and [CONFIDENTIAL TREATMENT REQUESTED] increased by [CONFIDENTIAL TREATMENT REQUESTED]. IDEC would not assign be required to deposit [CONFIDENTIAL TREATMENT REQUESTED] into Escrow, but rather would be entitled to withdraw [CONFIDENTIAL TREATMENT REQUESTED] from Escrow. (Thc amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Finally, if on the next reconciliation date, [CONFIDENTIAL TREATMENT REQUESTED] had increased by [CONFIDENTIAL TREATMENT REQUESTED], IDEC would be entitled to withdraw the remaining [CONFIDENTIAL TREATMENT REQUESTED] in Escrow and would have no further obligation to make deposits into Escrow. (The amount in Escrow [CONFIDENTIAL TREATMENT REQUESTED] exceeds the [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED] minus [CONFIDENTIAL TREATMENT REQUESTED] [CONFIDENTIAL TREATMENT REQUESTED]. Since at any of its rightstime following this reconciliation date [CONFIDENTIAL TREATMENT REQUESTED] would exceed the [CONFIDENTIAL TREATMENT REQUESTED], obligations or interest IDEC would have no further obligation to make deposits into Escrow.
5.7 In addition to Nordion's right to withdraw funds from Escrow as set forth in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1Sections 5.3 and 5.4 above, the Service Provider may assign to another person (an "Assignee") Nordion shell have the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 withdraw funds from Escrow as follows:
(Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. i) In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights event of termination of the Purchaser in clauses 64 Agreement:
(Termination Rightsa) and 65 by IDEC pursuant to Sections 2.3 or 2.4 of this Third Amendment, or
(Termination on Insolvency b) by Nordion or Change of Control) shall be available IDEC pursuant to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default Section 17.6 of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeAgreement,
Appears in 1 contract
Sources: Third Amendment to Agreement (Idec Pharmaceuticals Corp / De)
Escrow. As soon as reasonably practicable following (1) A portion of the Commencement DatePurchase Price in an amount equal to $20 million (the "Escrow Amount"), the Service Provider shall enter into a standard form Escrow Agreement be paid contemporaneously with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed Closing by the Parties that is Vendor to Bank of Montreal (the "Escrow Agent") to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with held by the Escrow Agent on in an account in the basis joint name of the terms agreed in Vendor and the Purchaser. The Escrow Agent shall, pursuant to an agreement between the Vendor, the Purchaser and the Escrow Agreement within ten Agent, the final terms of which shall be mutually agreed to by the parties thereto (10) days of the date "Escrow Agreement"), be directed by the Vendor and the Purchaser to pay the appropriate portion of the Escrow Agreement being signed. The Service Provider shall pay Amount upon the initial storage fees, the annual fees events and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be manner described below.
(2) Upon a Government Body shall notfinal award, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations judgement or settlement being made under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without CanWest Arbitration (the prior written consent of "Arbitration Award"), establishing an amount being owed (the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇."Initial ▇▇▇▇▇▇▇▇▇ Arbitration Liability") by any one or more of the Subsidiaries to CanWest and/or its related parties under the CanWest Agreement (collectively, the "CanWest Group") and the earlier of:
(a) the lapse of all appeal periods or periods during which the Arbitration Award may be varied by application to a court (the "Court") of competent jurisdiction (the "Appeal Periods") in respect of such Arbitration Award prior to the filing during such Appeal Periods of any and all appeals or applications to vary (an "Arbitration Appeal") in respect thereof without any member of the CanWest Group making demand for payment against any Subsidiary in respect of all or any portion of the Initial ▇▇▇▇▇▇▇▇▇ Arbitration Liability (including, without limitation, such demand being made by way of service on any one or more of the Subsidiaries of the Arbitration Award) (a "CanWest Demand") during such Appeal Periods;
(b) the making of a CanWest Demand during the Appeal Period where the right of any one or more members of the CanWest Group to enforce the Arbitration Award is not stayed pursuant to an order of the Court within seven (7) days of the making of a CanWest Demand; and
(c) the final, conclusive and unappealable determination or settlement of all Arbitration Appeals, as the case may be, by a Court, establishing an amount being owed (the "Final ▇▇▇▇▇▇▇.▇▇ Arbitration Liability") by any one or more of the Subsidiaries, directly, or indirectly, to any one or more members of the CanWest Group; the Escrow Agent shall be directed by the Vendor, the Purchaser and the applicable Subsidiary under the terms of the Escrow Agreement to forthwith pay to the applicable members of the CanWest Group the lesser of the Escrow Amount and the amount of the Initial ▇▇▇.▇▇) and awarded following a fair▇▇▇▇ Arbitration Liability or the Final ▇▇▇▇▇▇▇▇▇ Arbitration Liability, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. Any amount so paid will be deemed to be a payment under Section 7.03 which the Purchaser has irrevocably directed be paid to the applicable Subsidiary as a capital contribution and which the applicable Subsidiary, in turn, irrevocably directed be paid to the applicable members of the CanWest Group. The Service Provider liability of the Vendor, and the ability of the Purchaser to claim, under the CanWest Arbitration Indemnity shall also include in every Sub-contract: a right for be automatically reduced by the Service Provider amount of any such payment.
(3) The Escrow Agent shall be directed by the Purchaser and the Vendor under the terms of the Escrow Agreement to terminate pay out of escrow to the Vendor the Escrow Amount and all interest accrued thereon, less any amounts paid to any one or more members of the CanWest Group as set out above, upon the termination, withdrawal or final settlement of the CanWest Arbitration or the Arbitration Appeal, as the case may be. In the event that Sub-contract if the relevant Sub-contractor fails to comply maximum potential exposure of the Vendor in the performance of its contract CanWest Arbitration is determined by the Vendor, with legal obligations in the fields of environmental, social or employment law or if any consent of the termination events specified in clause 64.3 Purchaser not to be unreasonably withheld, at any time, to be less than the then remaining Escrow Amount, the Escrow Agent shall be directed by the Vendor and the Purchaser under the terms of the Escrow Agreement to pay out of escrow to the Vendor, from time to time, such portion of the Escrow Amount and any interest accrued thereon that exceeds such maximum exposure.
(Termination Rights4) occurIn no event shall the escrow contemplated hereby continue beyond the seventh anniversary of the Closing Date. If the escrow contemplated hereby continues beyond the third anniversary of the Closing Date, the Purchaser shall pay the Vendor the following amounts: (i) on the fourth and fifth anniversaries of the Closing Date, an amount equal to two and a half percent (2.5%) per annum of the balance of the Escrow Amount and interest accrued thereon, if any, outstanding at the commencement of the one year period ended on each such anniversary date; (ii) on the sixth anniversary of the Closing Date, an amount equal to ten percent (10%) per annum of the balance of the Escrow Amount and interest accrued thereon, if any, outstanding at the commencement of the one year period ended on such anniversary date; and a requirement that (iii) on the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection seventh anniversary of the Sub-contractor which ensures reasonable competition following principles Closing Date, an amount equal to fifteen percent (15%) of equal treatmentthe balance of the Escrow Amount and interest accrued thereon, non-discrimination if any, outstanding at the commencement of the one year period ended on such anniversary date. ▇▇▇▇▇▇▇▇▇ International shall be entitled, at all times, to direct the investment of the Escrow Amount within parameters to be agreed by ▇▇▇▇▇▇▇▇▇ International and transparency and which ensures Glacier, acting reasonably, provided that such procedure is accessible by small and medium enterprisesinvestments will be low risk, conservative investments. ChangeFor greater certainty, in all events, the Vendor shall be entitled to all interest earned on the Escrow Amount.
Appears in 1 contract
Sources: Share Purchase Agreement (Hollinger International Inc)
Escrow. As soon as reasonably practicable following the Commencement Date(i) In order to ensure that Cowlitz Bank shall be properly reimbursed for certain losses, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Exchange Agent satisfactory shall, promptly upon receipt of the Aggregate Cash Consideration, deliver an amount (the "ESCROWED FUNDS") equal to the Purchaser in relation product of (A) the Cash Consideration and (B) the total number of issued and outstanding shares of Northern Common Stock as of the Effective Time (excluding all Dissenting Shares), to an escrow agent (the software and/or documentation agreed by the Parties that is "ESCROW AGENT") to be deposited held in escrow (the “Escrowed Material”"ESCROW") pursuant to an escrow agreement in substantially the form attached hereto as Exhibit 3.2, with such changes as may be reasonably requested by the Escrow Agent and subject to the addition of Schedule 2 to the Escrow Agreement in accordance with this Section 3.2(b) (the "ESCROW AGREEMENT"). The Service Provider Escrow Agent shall deposit be a bank, trust company or other entity mutually agreed upon by Cowlitz and Northern.
(ii) A committee (the Escrowed Material with "COMMITTEE") shall be appointed by Northern and Cowlitz Bank to deliver instructions to the Escrow Agent on with respect to the basis disbursement of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signedEscrowed Funds. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (Northern hereby appoints ▇▇▇.▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ to serve on the Committee as representatives of the holders of Northern Common Stock (the "NORTHERN MEMBERS") and Cowlitz Bank hereby appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.▇ and ▇▇▇.▇▇ ▇▇▇▇▇ to serve on the Committee as representatives of Cowlitz Bank (the "COWLITZ BANK MEMBERS"). Cowlitz Bank shall have the right, from time to time and in its sole discretion, to appoint a substitute Cowlitz Bank Member upon written notice to the Escrow Agent and the Northern Members. If a Northern Member should prior to the Effective Time become unable or unwilling to serve on the Committee, such Northern Member shall give Northern and Cowlitz prompt prior written notice thereof, and Northern shall have the right, in its sole discretion, to appoint a substitute Northern Member no later than the earlier of (A) the Effective Time or (B) five (5) business days
(1) must have been a director or officer of Northern at the Effective Time or (2) in the remaining Northern Member's reasonable judgment, must be a sophisticated financial investor and (z) is not a director, officer or employee of Cowlitz or Cowlitz Bank. The parties agree that no Northern Member or Cowlitz Bank Member shall have any liability to any party hereto or any holder of Northern Common Stock with respect to acts or omissions in his or her capacity as a member of the Committee, unless it is established in a final judicial determination by clear and convincing evidence that any decision or action was undertaken with deliberate intent to injure the holders of Northern Common Stock or with reckless disregard for the best interest of such holders, and in any event, the liability shall be limited to actual, proximate, quantifiable damages.
(iii) The purpose of the Escrow shall be to ensure that Cowlitz Bank is reimbursed for losses relating to the Identified Loans. Schedule 2 to the Escrow Agreement shall be completed prior to the Effective Time by listing thereon each Identified Loan (as determined pursuant to Section 2.6(d)) and awarded following a fairthe Threshold Amount for each Identified Loan. Except as provided in the immediately succeeding sentence, open, transparent and competitive process proportionate the "Threshold Amount" shall mean for each Identified Loan the lesser of (A) the difference between (i) the reserve for such Identified Loan on the books of Northern immediately prior to the nature and value Effective Time (excluding any portion of the contract; includes provisions requiring general reserve for all oustanding loans) and (ii) the conduct Loan Adjustment Factor and (B) (i) 5% of audits; the outstanding principal amount if the Identified Loan is classified as Special Mention pursuant to the procedure set forth in Section 2.6(d), less the Loan Adjustment Factor, (ii) 15% of the principal amount if the Identified Loan is classified as Substandard, less the Loan Adjustment Factor, (iii) 50% of the principal amount if the Identified Loan is classified as Doubtful, less the Loan Adjustment Factor, and (iv) 100% of the principal amount if the Identified Loan is in classified as Loss, less the same terms as that set out in this Loan Adjustment Factor. Notwithstanding the preceding sentence, if the Base Value exceeds $4,707,139 and the amount determined pursuant to clause 41.3 (A) of the preceding sentence for an Identified Loan exceeds the amount determined pursuant to clause (B) for such Identified Loan, then the Threshold Amount for such Identified Loan shall equal the amount determined pursuant to clause (A) above. "Loan Adjustment Factor" will be $0 if Northern has on its books immediately prior to the Effective Time a general reserve equal to at least 1 1/2% of the aggregate principal amounts of all outstanding loans (including this clause 41.3.5 subject only to modification to refer without limitation all Identified Loans). If such general reserve is less than 1 1/2%, then the Loan Adjustment Factor will equal the different between (i) 1 1/2% and (ii) the percentage of the remaining general reserve that would be applicable to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider Identified Loans after moving sufficient general reserves to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures Identified Loans so that such procedure is accessible by small and medium enterprises. Changeall non-Identified Loans would have a general reserve of 1 1/2%.
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider 13.01. The Deposit shall enter into a standard form Escrow Agreement with a reputable be held in escrow by Escrow Agent satisfactory in an interest bearing account until disbursed as herein provided. Any interest accrued on the Deposit shall be paid to whichever party is entitled to the Deposit in accordance with the provisions of this Agreement. The Deposit shall be held and disbursed by Escrow Agent in the following manner:
(a) to Seller at the Closing upon consummation of the Closing; or
(b) to Seller upon receipt by Escrow Agent of written demand therefor, stating (i) that Purchaser has defaulted in relation the performance of Purchaser’s obligations under this Agreement and the facts and circumstances underlying such default or (ii) that Seller is otherwise entitled to the software and/or documentation agreed by Deposit pursuant to the Parties terms of this Agreement; provided, however, that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Purchaser, nor thereafter, if Escrow Agent shall have received written notice of objection from Purchaser in accordance with the provisions of Section 13.02; or
(c) to Purchaser upon receipt of written demand therefor, stating that either (i) this Agreement has been terminated pursuant to a provision hereof and certifying the basis for such termination, or (ii) Seller shall have defaulted in performance of Seller’s obligations under this Agreement and the facts and circumstances underlying such default or that Purchaser is otherwise entitled to the Deposit under the provisions of this Agreement; provided, however, that Escrow Agent shall not honor such demand until at least ten (10) days after it has sent a copy of such demand to Seller, nor thereafter if Escrow Agent shall have received written notice of objection from Seller in accordance with the provisions of Section 13.02. Notwithstanding the foregoing, if Escrow Agent receives a written demand from Purchaser for the return of the Deposit on or before the expiration of the Due Diligence Period, then Escrow Agent shall immediately send notice thereof to Seller and comply with said demand notwithstanding any contrary instruction Escrow Agent may receive from Seller.
13.02. Upon receipt of written demand for the Deposit by Purchaser or Seller pursuant to clause (b) or (c) of Section 13.01 (other than a demand from Purchaser on or before expiration of the Due Diligence Period, as provided above), Escrow Agent shall promptly send a copy thereof to the other party. The other party shall have the right to object to the delivery of the Deposit by sending written notice of such objection to Escrow Agent within the greater of five (5) days or three (3) business days after Escrow Agent delivers a copy of the written demand to the objecting party but not thereafter. Such notice shall set forth the basis for objecting to the delivery of the Deposit. Upon receipt of such notice, Escrow Agent shall promptly send a copy thereof to the party who made the written demand.
13.03. In the event of any dispute between the parties regarding the Deposit, Escrow Agent shall disregard all instructions received and at its option either (i) hold the Deposit until the dispute is mutually resolved and Escrow Agent is advised of fact in writing by both Seller and Purchaser, or Escrow Agent is otherwise instructed by a final non-appealable judgment of a court of competent jurisdiction, or (ii) deposit the Deposit into a court of competent jurisdiction (whereupon Escrow Agent shall be released and relieved of any and all liability and obligations hereunder from and after the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Duesuch deposit); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly.
13.04. In the absence of such notification event Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive conflicting instructions, claims or demands from the Purchaser is under no obligation to vary its arrangements for making payments parties hereto, or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform instructions which conflict with any of the functions that had previously provisions of this Agreement, Escrow Agent shall be entitled (but not obligated) to refrain from taking any action other than to keep safely the Deposit until Escrow Agent shall be instructed otherwise in writing signed by both Seller and Purchaser, or by final judgment of a court of competent jurisdiction.
13.05. Escrow Agent may rely upon, and shall be protected in acting or refraining from acting upon, any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been performed signed or presented by the Purchaser; proper party or any private sector body which substantially performs the functions of the Purchaserparties, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity modification of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) Article 13 shall be available to the Service Provider signed by Escrow Agent, Purchaser and Seller.
13.06. Seller and Purchaser shall jointly and severally hold Escrow Agent harmless against any loss, damage, liability or expense incurred by Escrow Agent not caused by its willful misconduct or gross negligence, arising out of or in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; connection with its entering into this Agreement and the Transferee shall only be able to assign, novate or otherwise dispose carrying out of its rights duties hereunder, including the reasonable costs and obligations under this Contract expenses of defending itself against any claim of liability or participating in any part thereof legal proceeding. Escrow Agent may consult with counsel of its choice, and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the prior consent opinion of such counsel.
13.07. Escrow Agent may resign at will and be discharged from its duties or obligations hereunder by giving notice in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use resignation specifying a date when such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and resignation shall take all reasonable steps to ensure effect; provided, however, that the Transferee gives a confidentiality undertaking in relation (i) prior to such Service Provider Confidential Information. Change of Control The Service Provider must notify the resignation a substitute escrow agent is approved in writing by Seller and Purchaser: whenever it proposes to undergo a change of Control, which approval shall not be unreasonably withheld or delayed, or (ii) Escrow Agent shall deposit the Deposit with a change court of control is likely to occur; and immediately following a change of Control that has occurredcompetent jurisdiction. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract After such resignation, Escrow Agent shall not relieve the Service Provider of any obligation have no further duties or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇liability hereunder.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Multifamily Reit I Inc)
Escrow. As soon as reasonably practicable following At Closing, Buyer shall pay the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory Amount to the Purchaser Escrow Agent, which amount shall be held in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow an account (the “Escrowed MaterialEscrow Account”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees to secure and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be serve as a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) fund in respect of the indemnification obligations specified in that Schedule. The Service Provider may not sub-contract its obligations of the Sellers under this Contract Agreement and for post-closing adjustments, if any, due Buyer pursuant to other Sub-contractors without Section 1.4(f)(ii) and shall be distributed in accordance with the prior written consent Escrow Agreement. No later than five (5) business days after the one (1) year anniversary of the Purchaser. Sub-contracting of any part of this Contract shall not relieve Closing Date (the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that“First Release Date”), where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇▇ and Sellers’ Representative will jointly instruct the Escrow Agent in writing to release to the Sellers’ Representative (for further distribution to the Non-Rollover Sellers) an amount equal to less (a) any amount(s) paid to Buyer out of the Escrow Account in accordance with Section 1.4(f) and awarded following a fairthe Escrow Agreement, open(b) any amount(s) paid to Buyer Indemnified Persons out of the Escrow Account in respect of any claims made by Buyer Indemnified Persons in accordance with Article X and the Escrow Agreement on or before the First Release Date and (c) the amount of any pending indemnity claims made by Buyer Indemnified Persons against the Escrow Account in accordance with Article X and the Escrow Agreement on or before the First Release Date. No later than five (5) business days after the eighteen (18) month anniversary of the Closing Date (the “Second Release Date”), transparent Buyer and competitive process proportionate Sellers’ Representative will jointly instruct the Escrow Agent in writing to release to the nature and value Sellers’ Representative (for further distribution to the Non-Rollover Sellers) an amount equal to the balance of the contract; includes provisions requiring the conduct of audits; and is Escrow Amount in the same terms Escrow Account (with any earnings thereon) as of the Second Release Date less the amount of any pending indemnity claims made by Buyer Indemnified Persons against the Escrow Account in accordance with Article X and the Escrow Agreement on or before the Second Release Date; provided that set out with respect to any pending claim as of the Second Release Date, promptly following resolution of such pending claim, the amount, if any, of such pending claim which has not been paid, which is not payable to any Buyer Indemnified Person pursuant to Article X in this clause 41.3 (including this clause 41.3.5 subject only connection with such resolution, and which is not required to modification remain in the Escrow Account to refer satisfy other pending claims shall be paid to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right Sellers’ Representative (for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider further distribution to the Purchaser as soon as reasonably practicable. Where Non-Rollover Sellers) in accordance with the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeEscrow Agreement.
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) In connection with each payment of the Commencement Installment Payment pursuant to Section 2.2(c) prior to the Installment Payment Discount Expiration Date, where, either the Service Provider shall Installment Payment is paid in full, or, as a result of such payment, the aggregate amount of Installment Payment paid would result in an amount less than the Escrow Target Amount remaining to be paid, either (i)(A) Buyers, Sellers and the Escrow Agent shall, if not already entered into, enter into an escrow agreement, in a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation be mutually agreed by the Parties that is to be deposited Buyers and Sellers acting in escrow good faith (the “Escrowed MaterialEscrow Agreement”). The Service Provider ) and (B) Buyers shall deposit with the Escrowed Material Escrow Agent, on behalf of Sellers and in lieu of delivering such portion of the Installment Payment to Sellers, all or a portion of the Installment Payment paid to Sellers in such payment in cash in an amount equal to (x) if the Installment Payment is being paid in full, the Escrow Target Amount, or (y) if the Installment Payment is being paid in part, an amount equal to the Escrow Target Amount less any amount remaining to be paid by wire transfer in immediately available funds to an account specified by the Escrow Agent pursuant to written instructions given to Buyers by the Escrow Agent no later than two Business Days prior to the applicable payment, and each Seller’s portion of the Installment Payment to be paid on such date will be equal to the Installment Payment to be paid on such date, minus the amount deposited with the Escrow Agent on such date, multiplied by such Seller’s Fraction (in which case the basis of the terms agreed in aggregate funds deposited with the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established Agent by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of Buyers pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to this Section 2.6(a) and/or Section 2.6(b) shall be a Government Body (in the remainder of this clause both such bodies being referred to as the “TransfereeEscrow Amount”): ) or (ii) if at such time the rights of termination Seller Parents have net assets and liquidity in an amount at least equal to the Escrow Amount that would result were Sellers to elect to act in accordance with Section 2.6(a)(i) at such time, as demonstrated by appropriate financial statements delivered by Sellers, SEMG and the Seller Parents will enter into the Parent Guaranty; provided the Parties agree that the Seller Parents shall decide, in their sole discretion, whether the Parties will act in accordance with Section 2.6(a)(i) or Section 2.6(a)(ii); provided further; however; if the Parties act in accordance with Section 2.6(a)(ii), upon execution of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectivelyParent Guaranty, the bankruptcy or insolvency, or Default of Parties agree the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations of this Section 2.6, without any action by any of the Parties, will no longer be of any force or effect and no Party will have the right to, or to cause any other Party to, enter into the Escrow Agreement.
(b) In addition to and not in limitation of the provisions of Section 2.6(a), in connection with each payment of the Installment Payment (partial or in full) pursuant to Section 2.2(c) prior to the Installment Payment Discount Expiration Date, if there are any pending or payable claims with respect to the indemnification obligations owed to the Buyer Indemnified Parties under this Contract or any part thereof Article IX with respect to which there has not been a Final Determination (each, a “Pending Claim”) on the payment date, then either (i)(A) Buyers, Sellers and the Escrow Agent shall, if not already entered into, enter into the Escrow Agreement and (B) Buyers will deposit with the prior consent Escrow Agent an amount in writing cash, by wire transfer in immediately available funds, equal to Buyers good faith estimate of Losses for any such Pending Claims to the Escrow Agent, and each Seller’s portion of the Service ProviderInstallment Payment to be paid on such date will be equal to the Installment Payment to be paid on such date, minus the amount deposited with the Escrow Agent, multiplied by such Seller’s Fraction or (ii) if at such time the Seller Parents have net assets and liquidity in an amount at least equal to the Escrow Amount at such time, as demonstrated by appropriate financial statements delivered by Sellers, SEMG and the Seller Parents will enter into the Parent Guaranty; provided the parties hereto agree that the Seller Parents shall decide, in their sole discretion, whether the Parties will act in accordance with Section 2.6(b)(i) or Section 2.6(b)(ii); provided further; however; if the Parties act in accordance with Section 2.6(b)(ii), upon execution of the Parent Guaranty, the Parties agree the rights and obligations of this Section 2.6, without any action by any of the Parties, will no longer be of any force or effect and no Party will have the right to, or to cause any other Party to, enter into the Escrow Agreement.
(c) The Escrow Amount shall be held by the Escrow Agent in the Escrow Account pursuant to this Agreement and the Escrow Agreement and shall constitute part of the Aggregate Purchase Price as provided in Section 2.2. All releases from the Escrow Account shall be made in accordance with this Section 2.6 and the Escrow Agreement. For all Tax purposes, the Parties agree to treat any Escrow Amount as property of Sellers and any income earned with respect to such Escrow Amount as income of Sellers. For the avoidance of doubt, the deposit by Buyers of any portion of the Installment Payment with the Escrow Agent in accordance with this Section 2.6 shall constitute the payment to Sellers of such portion of the Installment Payment for all purposes of this Agreement and any other Transaction Document.
(d) The Purchaser may disclose Escrow Agreement shall provide that releases from the Escrow Account of any portion of the Escrow Amount shall be made only in accordance with (i) written instructions that are jointly signed by Sellers and Buyers, which instructions shall be in a form that complies with the requirements of the Escrow Agreement (a “Joint Instruction Letter”) or (ii) pursuant to a Final Determination specifying the portion of the Escrow Amount to be released from the Escrow Account and the Persons to whom such portion of the Escrow Amount shall be released.
(e) In the event that there is any remaining Escrow Amount in the Escrow Account and Sellers become obligated to any Transferee any Service Provider Confidential Information which relates to Buyer Indemnified Party under the performance terms of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractorsSection 9.2(a) in respect of any indemnification obligation (as determined by a Final Determination or by mutual written agreement between the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations Indemnifying Party and the Indemnified Party) then, subject to the limitations on Sellers’ liability under this Contract Article IX, at such time, Sellers and Buyers shall execute and deliver a Joint Instruction Letter to other Sub-contractors without the prior written consent Escrow Agent directing the Escrow Agent to release the portion of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any Escrow Amount necessary to satisfy such obligation or duty attributable (or, to the Service Provider under this Contract. The Service Provider extent the then-remaining Escrow Amount is insufficient to satisfy such obligation, the then-remaining Escrow Amount).
(f) On the Installment Payment Discount Expiration Date (or the first Business Day after such day if such day is not a Business Day), Seller and Buyer shall be responsible for the acts execute and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider deliver to the Sub-contractor within Escrow Agent a specified period Joint Instruction Letter instructing the Escrow Agent to release to Seller the Escrow Balance (except for any portion of the Escrow Balance that the Escrow Agent has been validly instructed to release to any Buyer Indemnified Party in accordance with this Agreement and the Escrow Agreement but has not exceeding thirty (30) days from actually released as of such date), less a portion of the receipt of Escrow Balance with an aggregate value equal to a valid invoice as defined reasonable reserve amount determined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider Buyers in good faith in respect of Services any and the Sub-contractor’s invoice relates all Claim Notices submitted by any Buyer Indemnified Party prior to such Services thendate in accordance with Section 9.3 that remain pending as of such date, and upon the resolution of all such pending claims, if any, and after the payment of any amounts owed to any Person other than Sellers in connection with such claims and in accordance with this Agreement, Buyers and Sellers will promptly execute a Joint Instruction Letter instructing the Escrow Agent to release to Sellers the Escrow Balance. The Parties agree to treat any interest or other income earned with respect to the Escrow Amount as income of Sellers.
(g) Following the resolution, from time to time, of any claim underlying any Claim Notice for which a reserve of a portion of the Escrow Balance was established pursuant to Section 2.6(f), Sellers and Buyers shall execute and deliver to the Escrow Agent a Joint Instruction Letter instructing the Escrow Agent to release from the Escrow Account to Sellers, to a Buyer Indemnified Party or to both, a portion of the Escrow Balance, with an aggregate value equal to such portion of the reserve amount as is appropriate for the resolution of such claim.
(h) In the event of a conflict between the Escrow Agreement and this Agreement, this Agreement shall govern. In the event that extent, Buyers or Sellers receive a release of any portion of the invoice must be treated as valid and, provided Escrow Balance pursuant to the Service Provider Escrow Agreement to which it is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor entitled pursuant to the Service Providerterms of this Agreement, payment must such Party shall (i) if another Person is entitled to such portion of the Escrow Balance at such time, transfer such portion of the Escrow Balance to such other Person, or (ii) if no other Person is entitled to such portion of the Escrow Balance at such time, deposit such portion of the Escrow Balance in the Escrow Account with the Escrow Agent to be made held and released pursuant to the Sub-contractor without deduction; notifies Escrow Agreement.
(i) If either Sellers or Buyers fail to timely execute and deliver a Joint Instruction Letter when required under this Agreement, Sellers or Buyers, as applicable, shall be entitled to seek a Final Determination and/or specific performance (in accordance with Section 11.12), in each case that will enable the Sub-contractor that Escrow Agent to release to the Sub-contract forms part of a larger contract for applicable Person or Persons the benefit portion of the Purchaser Escrow Balance to which they are entitled under this Agreement and that should the Sub-contractor have any difficulty in securing the timely payment to seek to recover Losses from Seller or Buyer, as applicable, as a result of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails such failure to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changethis Agreement.
Appears in 1 contract
Escrow. As soon as reasonably practicable following (a) Notwithstanding anything to the Commencement contrary contained in this Article II, on the Closing Date, there shall be deducted from the Service Provider shall enter Merger Consideration payable pursuant to Sections 2.01(b)(iii) and (iv), on a pro rata basis, the sum of Twenty Million Dollars ($20,000,000) (the "Escrowed Funds"), -------------- which sum will be deposited into a standard form an interest bearing escrow account, to be held by The Chase Manhattan Bank (the "Escrow Agreement with a reputable Agent") pursuant to an escrow agreement ------------ to be entered into on the Closing Date among Parent, the Surviving Corporation, the Holders, the Holder Representatives and the Escrow Agent satisfactory to in substantially the Purchaser in relation to form annexed hereto as Exhibit 2.05(a) (the software and/or documentation agreed by the Parties that is to "Escrow Agreement"). The ---------------- ----------------- Escrowed Funds will be deposited in escrow accordance with the Cash/Stock Ratio (the “Escrowed Material”). The Service Provider shall deposit i.e., 55% of the Escrowed Material with the Escrow Agent on the basis Funds will be cash and 45% of the terms agreed in the Escrow Agreement within ten (10) days Escrowed Funds will be shares of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage feesParent Common Stock or Parent Preferred Stock, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be, together with duly endorsed blank stock powers) valued based on the Common Stock Stated Value or the Preferred Stock Stated Value, respectively, as indicated in Section 2.01(a)(ii). In addition, any shares of Parent Common Stock or Parent Preferred Stock, as the case may be, issued from time to time after the Closing Date in respect of the shares of Parent Common Stock or Parent Preferred Stock included in the Escrowed Funds by virtue of any stock split, stock combination, stock dividend or reclassification of shares, reorganization, recapitalization or similar change shall be immediately deposited into the escrow account, together with duly endorsed blank stock powers, and shall, upon deposit, be deemed to be part of the Escrowed Funds for all purposes hereunder. The Service Provider Escrowed Funds will secure (x) any adjustments to the Merger Consideration as provided for in Section 2.04, and (y) the Holders' indemnification obligations under Articles IX and XI of this Agreement. The Escrowed Funds will be withdrawn or released as follows:
(i) upon the final determination of the Shareholder Equity in accordance with Section 2.04, (A) if Parent is entitled to receive any adjustment of the Merger Consideration, the amount of such adjustment shall also include be withdrawn from the Escrowed Funds in every Sub-contract: accordance with Section 2.04, and paid to Parent, within five (5) days after such final determination, and (B) there shall be withdrawn from the Escrowed Funds the amounts necessary to pay any fees payable by the Holders to E&Y and the Independent Firm, as applicable, pursuant to Section 2.04(a)(v), such amounts to be paid directly to E&Y and the Independent Firm, as applicable;
(ii) following the final determination of the Shareholder Equity in accordance with Section 2.04 and the withdrawal, if any, of Escrowed Funds as provided in clause (i) above, a right for portion of the Service Provider Escrowed Funds will be released to terminate the Holders (in accordance with the Cash/Stock Ratio) such that Sub-contract the sum of $15,000,000 (with the value of the Parent Common Stock or the Parent Preferred Stock, as the case may be, to be based on the Common Stock Stated Value or the Preferred Stock Stated Value, respectively) will remain as Escrowed Funds; provided, however, that if the relevant Sub-contractor fails to comply less than $15,000,000 (valued in the performance manner provided above) shall remain after the withdrawal as provided in clause (i) above, each Holder, within five (5) days after such withdrawal, shall deposit such additional cash and, at each Holder's option, shares of its contract with legal obligations Parent Common Stock or Parent Preferred Stock, as the case may be (valued in the fields manner provided above, but not to exceed forty-five percent (45%) of environmentalthe amount required to be deposited) as needed to cause the Escrowed Funds to be $15,000,000 (such deposit to be made by the Holders, social pro rata, based on the respective portion of the Merger Consideration that each Holder is entitled to receive under Sections 2.01(b)(iii) and (iv)); and
(iii) the remaining Escrowed Funds (including any undistributed interest earned thereon), if any, will be released to the Holders on the first (1st) anniversary of the Closing Date; provided, however, that if prior to such first (1st) -------- ------- anniversary Parent or employment law the Surviving Corporation shall give notice of a claim or claims for indemnification pursuant to Articles IX or XI of this Agreement, then: (A) if any such claim is resolved prior to such first (1st) anniversary, by judicial determination or otherwise, any sums due Parent or the Surviving Corporation shall be withdrawn from the Escrowed Funds and paid to Parent or the Surviving Corporation, within five (5) days after such resolution; or (B) if any such claim is not resolved prior to such first (1st) anniversary, the amount of such claim, plus the reasonably estimated amount of legal fees and disbursements to be incurred in connection therewith, shall be retained as Escrowed Funds until such claim is resolved. Any amounts to be withdrawn or to be retained pursuant to clause (A) or (B) above shall be withdrawn or retained, respectively, as follows: (x) if such claim is a Third Party Claim (as defined in Section 9.06(b)), first from Escrowed Funds consisting of cash, and thereafter from shares of Parent Common Stock or Parent Preferred Stock, as the case may be, and (y) if such claim is not a Third Party Claim, in accordance with the Cash/Stock Ratio or, at the option of the termination events Holder Representatives, in cash. For purposes of determining the number of shares of Parent Common Stock (if applicable) to be withdrawn or to be retained as Escrowed Funds under this clause (iii), the Parent Common Stock shall be deemed to have a value equal to the Common Stock Stated Value. For purposes of determining the number of shares of Parent Preferred Stock (if applicable) to be withdrawn or to be retained as Escrowed Funds under this clause (iii), the Parent Preferred Stock shall be deemed to have a value equal to the Preferred Stock Stated Value. Any Escrowed Funds released to the Holders shall be paid to the Holders, pro rata, based on the respective portion of the Merger Consideration that each Holder is entitled to receive pursuant to Section 2.01(b)(iii) and (iv), it being agreed that no Escrowed Funds shall be released to any Holder in respect of the Company Redeemable Preferred Stock.
(b) In addition, notwithstanding anything to the contrary contained in this Article II, on the Closing Date, there shall be deducted from the Merger Consideration payable pursuant to Sections 2.01(b)(iii) and (iv), on a pro rata --- ---- basis, an additional sum, in cash, in the amount (the "Additional Escrowed ---------- -------- Funds") specified in clause 64.3 the letter agreement to be entered into on the Closing Date ----- among Parent, the Surviving Corporation, the Holders and the Holder Representatives in substantially the form annexed hereto as Exhibit 2.05(b)(i) ------------------- (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards"Letter Agreement"). Where requested The Additional Escrowed Funds will be deposited into ----------------- an interest bearing escrow account to be held by the PurchaserEscrow Agent pursuant to an escrow agreement to be entered into on the Closing Date among Parent, copies of any Sub-contract must be sent by the Service Provider to Surviving Corporation, the Purchaser as soon as reasonably practicable. Where Holders, the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal Holder Representatives and the Public Contracts Scotland Portal; Escrow Agent in substantially the form annexed hereto as Exhibit 2.05(b)(ii) (the ------------------- "Additional Escrow Agreement", and, together with the Escrow Agreement, ----------------------------- collectively, the "Escrow Agreements"), and follow a procedure leading to will be withdrawn or released in ------------------ accordance with the selection terms of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination Letter Agreement and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changethe Additional Escrow Agreement.
Appears in 1 contract
Escrow. As soon (a) Concurrently with the execution of this Agreement, to secure the Buyer's covenants, agreements and obligations hereunder, certain of the Buyer's affiliates (the "Buyer Affiliates") shall, on behalf of the Buyer, deposit (i) $2,000,000 and (ii) the Escrow Shares duly endorsed in blank or accompanied by stock powers or other instruments of transfer duly executed in blank, into escrow pursuant to an escrow agreement in the form set forth as reasonably practicable following Exhibit 1.2-A hereto (the Commencement Date"Escrow Agreement"). In addition, concurrently with the Service Provider execution of this Agreement, each of the Buyer Affiliates shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory execute and deliver to the Purchaser Seller a letter in relation the form and substance as set forth in Exhibit 1.2-B attached hereto. The Buyer hereby represents and warrants to the software and/or documentation agreed Seller that the respective Buyer Affiliate has good and marketable title to the Escrow Shares so deposited into escrow by such Buyer Affiliate and that the Parties that is to Escrow Shares shall be deposited in into escrow free and clear of all Liens or claims whatsoever.
(b) Such $2,000,000 and the “Escrowed Material”). The Service Provider Escrow Shares shall deposit the Escrowed Material with be held by the Escrow Agent on the basis of the terms agreed (as defined in the Escrow Agreement within ten (10Agreement) days of and released only pursuant to the date terms and conditions of the Escrow Agreement being signedAgreement. The Service Provider shall pay Seller and the initial storage fees, the annual fees Buyer agree that such $2,000,000 (including any interest earned thereon) and update fees under the Escrow Agreement Shares shall be immediately released and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due paid to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to Seller as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider liquidated damages in the event of respectively, that the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the Agreement is terminated prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives Closing solely as a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect result of a breach of contract or default by the Sub-contractor or in respect of a sum otherwise due by Buyer under this Agreement. The Seller and the Sub-contractor Buyer also agree that such $2,000,000 (including any interest earned thereon) and the Escrow Shares shall be immediately released to the Service Provider, payment must be made Buyer Affiliates if this Agreement is terminated prior to the Sub-contractor without deduction; notifies Closing for any other reason. The Seller and the Sub-contractor Buyer also agree that such $2,000,000 (including any interest earned thereon) and the Sub-contract forms part of Escrow Shares shall be released contemporaneously with the Closing as the parties mutually agree in a larger contract for manner to facilitate the benefit Closing as contemplated hereby. Each of the Purchaser Seller and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor Buyer shall promptly execute and deliver to the Purchaser; requires that all contracts Escrow Agent joint written instructions consistent with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇foregoing agreements.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass International Services Corp)
Escrow. As soon If this Agreement or any matter relating hereto shall become the subject of any litigation or controversy, 45 Buyer and Seller agree, jointly and severally, to hold Escrow Holder free and harmless from any loss or expense, except losses or 46 expenses as reasonably practicable following the Commencement Datemay arise from Escrow Holder's negligence or willful misconduct. If conflicting demands are made or notices 47 served upon Escrow Holder with respect to this Agreement, the Service Provider shall enter into parties expressly agree that Escrow is entitled to file a standard form suit in 48 interpleader and obtain an order from the Court authorizing Escrow Agreement with a reputable Escrow Agent satisfactory Holder to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material all such documents and monies with the 49 Court, and obtain an order from the court requiring the parties to interplead and litigate their several claims and rights among 50 themselves. Upon the entry of an order authorizing such Interpleader, Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider Holder shall pay the initial storage feesbe fully released and discharged Each party acknowledges that he/she has read, the annual fees understood, and update fees under the Escrow Agreement agrees to each and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity every provision of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to page unless a particular supplier, are advertised through the Public Contracts Scotland procurement portal (paragraph is otherwise modified by addendum or counteroffer. Buyer's Name: Capital Homes LLC ▇▇▇ ▇▇▇.▇▇ ▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇▇ BUYER(S) INITIALS: / Property Address: Henderson, 89015 SELLER(S) INITIALS: / 1 from any obligations imposed upon it by this Agreement; and awarded following a fairEscrow Holder shall not be liable for the sufficiency or correctness 2 as to form, openmanner, transparent and competitive process proportionate execution or validity of any instrument deposited with it, nor as to the nature and value identity, authority or rights of the contract; includes provisions requiring the conduct any 3 person executing such instrument, nor for failure of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails Buyer or Seller to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies provisions of any Sub-4 agreement, contract must or other instrument filed with Escrow Holder or referred to herein. Escrow Holder's duties hereunder shall be sent by the Service Provider 5 limited to the Purchaser safekeeping of all monies, instruments or other documents received by it as soon Escrow Holder, and for their disposition 6 in accordance with the terms of this Agreement. In the event an action is instituted in connection with this escrow, 7 in which ESCROW HOLDER is named as reasonably practicable. Where a party or is otherwise compelled to make an appearance, all costs, expenses 8 attorney fees, and judgments ESCROW HOLDER may expend or incur in said action, shall be the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection responsibility of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changeparties 9 hereto.
Appears in 1 contract
Sources: Vacant Land Purchase Agreement
Escrow. As soon long as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form there are Indemnification Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material Amounts validly held with the Escrow Agent on Agent, any and all Losses payable by Seller or the basis Seller Member as an Indemnitor pursuant to Section 5.2(a) shall be paid first from the Indemnification Escrow Amount. Within three (3) days following the determination that such payment is due to a Buyer Indemnitee and the delivery of written notice from Buyer of its election to recover such amount from the terms agreed in Indemnification Escrow Amount, Buyer and Seller shall execute and deliver a joint written instruction to the Escrow Agreement within ten (10) days of the date of Agent directing the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the Agent to release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign such amount to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the PurchaserBuyer. If the rights Indemnification Escrow Amount is insufficient to cover any and obligations under this Contract are assigned, novated all Losses payable by Seller or otherwise disposed of the Seller Member as an Indemnitor pursuant to clause 39.4 to a body which is not a Government Body or if there is a change Section 5.2(a), or, in the legal status case of any indemnification of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectivelySeller Indemnitees, the bankruptcy or insolvencyapplicable Indemnitor, or Default shall promptly pay such Losses by wire transfer of the Transferee; and the Transferee shall only be able immediately available funds to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due an account designated by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides thatapplicable Buyer Indemnitee or Seller Indemnitee, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include , within three (3) days after the determination thereof; provided, that the Buyer Indemnitees may elect, in every Sub-contract: a right for the Service Provider their sole discretion, to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance setoff all or any portion of its contract with legal obligations in the fields of environmental, social such amount owing from Seller or employment law or if Seller Member against any other amounts otherwise due and payable by any of the termination events specified in clause 64.3 Buyer Indemnitees or any of their Affiliates to Seller or Seller Member. Within three (Termination Rights3) occur; Business Days following the twelve (12) month anniversary of the Closing Date (the “Indemnification Escrow Release Date”) and a requirement Seller’s written notice to Buyer that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeIndemnification Escrow Release Date has
Appears in 1 contract
Sources: Equity Purchase Agreement (Mammoth Energy Services, Inc.)
Escrow. As soon as reasonably practicable following The Purchaser and Sellers, prior to Closing, will retain the Commencement Escrow Agent and will negotiate in good faith the terms and conditions of an Escrow Agreement using a form acceptable to the Escrow Agent; provided, however, that the Escrow Agreement must include the release conditions set forth in subsections (a), (b) and (c) below, and provided further that Purchaser will be solely responsible for the standard fees of the Escrow Agent, but with Purchaser and Sellers' Representative equally sharing any additional costs and expenses incurred by the Escrow Agent. In that regard, the Purchaser and Sellers agree that:
(a) the Escrow Agreement will provide that, on the eighteen (18) month anniversary of the Closing Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable Escrow Agent satisfactory will deliver and pay over to the Purchaser in relation Sellers an amount equal to each Seller's pro-rata portion (to be determined based on each Seller's ownership percentage set forth on the software and/or documentation agreed Fully-Diluted Cap Table) of the Deductible, reduced by the Parties sum of (i) any applicable withholding tax, (ii) the amount of any indemnification claims that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with have been paid by the Escrow Agent on plus, and (iii) the basis amount of the terms agreed in any indemnification claims previously made by any Purchaser Indemnified Person which have not been fully resolved;
(b) the Escrow Agreement within ten (10) days of will provide that on the third anniversary or, if later, on the date as of which no Tax periods prior to or including the Closing Date are subject to an open Tax audit by any Governmental Body, the balance of the Escrow Agreement being signed. The Service Provider Amount reduced by (i) any applicable withholding tax, and (ii) the amount of any indemnification claims by any Purchaser Indemnified Person which have not been finally resolved, will be delivered and paid over to the Sellers, who shall pay be entitled to receive an amount equal to each Seller's pro-rata portion (to be determined based on each Seller's ownership percentage set forth on the initial storage fees, the annual fees and update fees under Fully-Diluted Cap Table) of such balance.
(c) the Escrow Agreement will provide for cross-notices to the parties of any disbursement notices to the Escrow Agent, and the Purchaser shall pay Escrow Agreement will be terminated when all unresolved indemnification claims have been finally resolved and otherwise in accordance with the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent terms of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person Escrow Agreement; and
(an "Assignee"d) the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure Escrow Agreement will provide that the Transferee gives Escrow Amount will be held at all time in an interest-bearing escrow account at a confidentiality undertaking in relation major financial institution acceptable to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇Sellers' Representative.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Change
Appears in 1 contract
Escrow. As soon as reasonably practicable following the Commencement Date, the Service Provider shall enter into a standard form Escrow Agreement with a reputable (a) The Escrow Agent satisfactory agrees to the Purchaser in relation to the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date hold all of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest Res in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due escrow subject to the Service Provider under this Contract subject to: deduction of sums in respect of following terms and conditions, which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider control in the event of respectively, any conflict between the bankruptcy or insolvencyprovisions hereof and those reflected in any other instruments.
(1) The Escrow Res, or Default any portion thereof, may be disbursed at any time upon notification in writing, signed by both Principals, such writing to be orally confirmed by the Escrow Agent; or
(2) The Escrow Res, or any portion thereof, may be disbursed upon receipt of separate written instruments, one from each Principal, otherwise meeting the requirements of Section I(a)(1); or
(A) The Escrow Agent will deliver the portion of the Transferee; Escrow Res to be distributed to the Qualifying Recipients to WRI's transfer agent, provided that it is registered as such and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof in good standing with the prior consent in writing Commission (the "WRI Transfer Agent"), at such time as the Escrow Agent is notified that the registration statement filed by WRI with the Commission registering the Escrow Res for distribution to the Qualifying Recipients (the "WRI Registration Statement") has been declared effective by the Commission, with signature medallion guaranteed, as required to permit distribution of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates Escrow Res to the performance Qualified Recipients in the manner called for by the WRI Registration Statement.
(B) The Escrow Agent will deliver the portion of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment Escrow Res to be made of all sums due by the Service Provider delivered to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.. ▇▇▇▇▇▇, to ▇▇. ▇▇▇▇▇▇ pursuant to the terms of the Principles' Agreement, concurrently with ▇▇. ▇▇▇▇▇▇'▇ delivery to the Escrow Agent, with signature medallion guaranteed, as required to permit immediate cancellation by AmeriNet of the shares of AmeriNet common stock which ▇▇. ▇▇▇▇▇▇ is required to return to AmeriNet under the terms of the Principles' Agreement.
(C) The Escrow Agent will deliver the portion of the Escrow Res to be delivered to Yankees pursuant to the terms of the Principles' Agreement, concurrently with the distribution of AmeriNet common stock to the Qualifying Recipients, as described in Section 1(a)(3)(A) above.
(4) In the event that WRI fails to secure an effective date for the Registration Statement in a manner rendering it abandoned under federal securities laws, regulations or rules, then the Escrow Agent shall immediately convey the Escrow Res other than that theretofore tendered to ▇▇. ▇▇▇▇▇▇▇▇▇▇▇, to the order of Yankees, for disposition as Yankees deems appropriate, in its sole discretion.▇▇▇
(5) In the event that the Escrow Agent has not received acceptable dispositive instructions from the Principals within 12 months after the date of this Escrow Agreement, he may, at his option, initiate an action in the nature of interpleader and deposit the Escrow Res in the registry of a court of competent jurisdiction, for disposition.▇▇
(6) In the event that either Principal fails to provide the Escrow Agent with confirmation of disbursement instructions satisfactory to the Escrow Agent after receipt of a disbursement demand from the other Principal, the Escrow Agent may, at his option, initiate an action in the nature of interpleader and awarded following deposit the Escrow Res in the registry of a faircourt of competent jurisdiction, openfor disposition.
(b) Unless otherwise provided for in this Escrow Agreement or any addendum hereto, transparent the Escrow Agent shall disburse the Escrow Res without interest or other accumulation in value.
(c) The Escrow Agent shall not be deemed to have knowledge of any matter or thing unless and competitive process proportionate until the Escrow Agent has actually received written notice of such matter or thing and the Escrow Agent shall not be charged with any constructive notice whatsoever.
(d) In the event the Escrow Res consist in whole or in part of stocks, bonds or certificates of deposit (or any other property which may fluctuate in value) the Escrow Agent shall hold in escrow, pursuant to this Escrow Agreement, any proceeds of the Escrow Res actually delivered to the Escrow Agent and realized as a result of splits, calls, redemptions or otherwise, but shall not be obligated to ascertain the existence of (or initiate recovery of) such proceeds or to become or remain informed with respect to the possibility or probability of such proceeds being realized at any time in the future, or to inform any Principal(s) or any third party with respect to the nature and extend of any proceeds realized, except upon the written request of such party, or to monitor current market values of the Escrow Res. Furthermore, the Escrow Agent shall not be obligated to proceed with any action or inaction based on information with respect to market values of the Escrow Res which the Escrow Agent may in any manner learn, nor shall the Escrow Agent be obligated to inform the Principal(s) or any third party with respect to market values of any one or more of the Escrow Res at any time, the Escrow Agent having no duties with respect to investment management or information, all Principals(s) understanding and intending that Escrow Agent's responsibilities are purely ministerial in nature. Any reduction in the market value or other value of the contract; includes provisions requiring Escrow Res while deposited with the conduct Escrow Agent shall be at the sole risk of audits; Principal(s).
(e) In the event instructions from Principal(s) would require the Escrow Agent to expend any funds or to incur any cost, the Escrow Agent shall be entitled to refrain from taking any action until it receives payment for such costs.
(f) The Principal(s) acknowledge and is agree that nothing in this Escrow Agreement shall prohibit the Escrow Agent from (1) serving in a similar capacity on behalf of the others or (2) acting in the same terms capacity of attorney for one or more Principal(s) in connection with any matter.
(g) The Parties acknowledge that the Qualified Recipients and Yankees shall be third party beneficiaries under this Escrow Agreement for purposes of enforcing rights to receipt of the Escrow Res, as that set out provided for in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. ChangeEscrow Agreement.
Appears in 1 contract
Sources: Superseder & Termination Agreement (Fields Technologies Inc)
Escrow. As soon as reasonably practicable At or promptly following the Commencement DateEffective Time, Parent shall instruct the Transfer Agent to deliver to the Stockholder Representative certificates evidencing the Escrow Shares issued in the name of each Company Stockholder in the amounts set forth after such Company Stockholder’s name on the Updated Schedule 2.2. Promptly following the Effective Time, the Service Provider Stockholder Representative, upon request by Parent, shall enter into deliver the certificates representing the Escrow Shares to a standard form Escrow Agreement with a reputable Escrow Agent satisfactory third-party escrow holder selected by Parent and mutually agreeable to the Purchaser in relation to Stockholder Representative (for purposes of this Agreement, the software and/or documentation agreed by the Parties that is to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date Stockholder Representative, as holder of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement Shares and the Purchaser third-party escrow holder selected by parent shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 to a body which is not a Government Body or if there is a change in the legal status of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “TransfereeEscrow Holder”): ). The parties agree that Parent may instruct the rights of termination Transfer Agent to place stop transfer orders on the Escrow Shares for so long as they are subject to the escrow contemplated by this Section 2.5. The portion of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination Escrow Shares deposited with the Escrow Holder by or on Insolvency or Change behalf of Control) each Company Stockholder shall be available determined on a pro rata basis in proportion to each Company Stockholder’s relative ownership interest in the total number of Merger Shares issued in connection with the Merger. The terms by which the Escrow Holder shall hold and distribute the Escrow Shares shall be set forth in an escrow agreement (the “Escrow Agreement”) among Escrow Holder, the Stockholder Representative as representative of the Company Stockholders, and Parent. The Escrow Agreement shall be in a customary form reasonably acceptable to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose parties thereto and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors provide as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.▇▇) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; includes provisions requiring the conduct of audits; and is in the same terms as that set out in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation of the equivalent party as the Service Provider and Sub-contractor as the case may be. The Service Provider shall also include in every Sub-contract: a right for the Service Provider to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events specified in clause 64.3 (Termination Rights) occur; and a requirement that the Sub-contractor includes a provision having the same effect as clause 41.4.1 in any Sub-contract which it awards. Where requested by the Purchaser, copies of any Sub-contract must be sent by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection of the Sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changefollows:
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Escrow. As soon as reasonably practicable following (i) Simultaneously with the Commencement Dateexecution and delivery of this Agreement by a Purchaser, the Service Provider such Purchaser shall enter into promptly cause a standard form Escrow Agreement with a reputable Escrow Agent satisfactory to the Purchaser wire transfer of immediately available funds (U.S. dollars) in relation to the software and/or documentation agreed by the Parties that is an amount representing such Purchaser’s Subscription Amount to be deposited in escrow (the “Escrowed Material”). The Service Provider shall deposit the Escrowed Material with the Escrow Agent on the basis of the terms agreed in the Escrow Agreement within ten (10) days of the date of the Escrow Agreement being signed. The Service Provider shall pay the initial storage fees, the annual fees and update fees under the Escrow Agreement and the Purchaser shall pay the release fee. Assignation The Service Provider may not assign any of its rights, obligations or interest in this Contract or any part of it without the prior written consent of the Purchaser. Notwithstanding clause 39.1, the Service Provider may assign to another person (an "Assignee") the right to receive the price due to the Service Provider under this Contract subject to: deduction of sums in respect of which the Purchaser exercises its right of recovery under clause 12 (Recovery of Sums Due); and all the related rights of the Purchaser under this Contract in relation to the recovery of sums due but unpaid. The Service Provider must notify or ensure that any Assignee notifies the Purchaser of any variations to the arrangements for making payments or for handling invoices, in each case in good time to enable the Purchaser to redirect payments or invoices accordingly. In the absence of such notification the Purchaser is under no obligation to vary its arrangements for making payments or for handling invoices. Subject to clause 39.6, the Purchaser may assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof to: any Government Body; or any other body established by the Crown or under statute in order substantially to perform any of the functions that had previously been performed by the Purchaser; or any private sector body which substantially performs the functions of the Purchaser, provided that any such assignation, novation or other disposal shall not increase the burden of the Service Provider’s obligations under this Contract. Any change in the legal status of the Purchaser such that it ceases to be a Government Body shall not, subject to clause 39.6, affect the validity of this Contract. In such circumstances, this Contract shall bind and inure to the benefit of any successor body to the Purchaser. If the rights and obligations under this Contract are assigned, novated or otherwise disposed of pursuant to clause 39.4 paid to a body which is not a Government Body or if there is a change in the legal status non-interest bearing escrow account of the Purchaser such that it ceases to be a Government Body (in the remainder of this clause both such bodies being referred to as the “Transferee”): the rights of termination of the Purchaser in clauses 64 (Termination Rights) and 65 (Termination on Insolvency or Change of Control) shall be available to the Service Provider in the event of respectively, the bankruptcy or insolvency, or Default of the Transferee; and the Transferee shall only be able to assign, novate or otherwise dispose of its rights and obligations under this Contract or any part thereof with the prior consent in writing of the Service Provider. The Purchaser may disclose to any Transferee any Service Provider Confidential Information which relates to the performance of the Service Provider’s obligations under this Contract. In such circumstances the Purchaser shall authorise the Transferee to use such Service Provider Confidential Information only for purposes relating to the performance of the Service Provider’s obligations under this Contract and for no other purpose and shall take all reasonable steps to ensure that the Transferee gives a confidentiality undertaking in relation to such Service Provider Confidential Information. Change of Control The Service Provider must notify the Purchaser: whenever it proposes to undergo a change of Control, or a change of control is likely to occur; and immediately following a change of Control that has occurred. Sub-Contracting The Purchaser approves the appointment of the Sub-contractors specified in Schedule 7 (Approved Sub-contractors) in respect of the obligations specified in that Schedule. The Service Provider may not sub-contract its obligations under this Contract to other Sub-contractors without the prior written consent of the Purchaser. Sub-contracting of any part of this Contract shall not relieve the Service Provider of any obligation or duty attributable to the Service Provider under this Contract. The Service Provider shall be responsible for the acts and omissions of its Sub-contractors as though they are its own. Where the Service Provider enters into a Sub-contract the Service Provider must ensure that a provision is included which: requires payment to be made of all sums due by the Service Provider to the Sub-contractor within a specified period not exceeding thirty (30) days from the receipt of a valid invoice as defined by the Sub-contract requirements and provides that, where the Purchaser has made payment to the Service Provider in respect of Services and the Sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Service Provider is not exercising a right of retention or set-off in respect of a breach of contract by the Sub-contractor or in respect of a sum otherwise due by the Sub-contractor to the Service Provider, payment must be made to the Sub-contractor without deduction; notifies the Sub-contractor that the Sub-contract forms part of a larger contract for the benefit of the Purchaser and that should the Sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the Sub-contractor to the Purchaser; requires that all contracts with Sub-contractors and suppliers which the Sub-contractor intends to procure, and which the Sub-contractor has not before the Commencement Date already planned to award to a particular supplier, are advertised through the Public Contracts Scotland procurement portal (▇▇▇.L▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ PC (the “Escrow Agent”) set forth on Exhibit G attached hereto (the aggregate amounts received being held in escrow by the Escrow Agent are referred to herein as the “Escrow Amount”). The Escrow Agent shall hold the Escrow Amount in escrow in accordance with Section 2.1(d)(ii) below.▇▇▇
(ii) The Escrow Agent shall continue to hold the Escrow Amount in escrow in accordance with and subject to this Agreement, from the date of its receipt of the funds constituting the Escrow Amount until the soonest of:
(A) the termination of this Agreement in accordance with Section 6.18, in which case, if the Escrow Agent then holds any portion of the Escrow Amount, then: (1) in the event of a termination by the Company, the Escrow Agent shall return the portion of the Escrow Amount received from each Purchaser which it then holds, to each such Purchaser, and in the event of a termination by a Purchaser, the Escrow Agent shall return the portion of the Escrow Amount received from such Purchaser which it then holds, to such Purchaser, in accordance with written wire transfer instructions received from the Purchaser; and (2) if the Escrow Agent has not received written wire transfer instructions from any Purchaser before the 30th day after such termination date, then the Escrow Agent may, in its sole and absolute discretion, either (x) deposit that portion of the Escrow Amount to be returned to such Purchaser in a court of competent jurisdiction on written notice to such Purchaser, and the Escrow Agent shall thereafter have no further liability with respect to such deposited funds, or (y) continue to hold such portion of the Escrow Amount pending receipt of written wire transfer instructions from such Purchaser or an order from a court of competent jurisdiction; OR
(B) the Closing, receipt of written instructions from the Company and the Placement Agent that the Closing shall have been consummated, in which case, the Escrow Agent shall release the Escrow Amount constituting the aggregate purchase price as follows: (1) to the Placement Agent, the fees payable to such Placement Agent (which fees shall be set forth in such instructions), (2) to the Company’s Counsel, the fees payable to such Company Counsel, and (3) the balance of the aggregate purchase price to the Company.▇▇
(iii) The Company and the Purchasers acknowledge and agree for the benefit of the Escrow Agent (which shall be deemed to be a third party beneficiary of this Section 2.1(d)) as follows:
(A) The Escrow Agent: (i) is not responsible for the performance by the Company, the Purchasers or Placement Agent of this Agreement or any of the Transaction Documents or for determining or compelling compliance therewith; (ii) is only responsible for (A) holding the Escrow Amount in escrow pending receipt of written instructions from the Company and the Placement Agent directing the release of the Escrow Amount, and (B) disbursing the Escrow Amount in accordance with the written instructions from the Company or the Placement Agent (or the Purchaser in accordance with Section 2.1(d)(ii)(A)), each of the responsibilities of the Escrow Agent in clause (A) and awarded following a fair(B) is ministerial in nature, open, transparent and competitive process proportionate to no implied duties or obligations of any kind shall be read into this Agreement against or on the nature and value part of the contractEscrow Agent (collectively, the “Escrow Agent Duties”); includes provisions requiring (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with indemnification acceptable to it, in its sole discretion; (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction (including, without limitation, wire transfer instructions, whether incorporated herein or provided in a separate written instruction), instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the conduct proper Person, and shall have no responsibility for making inquiry as to, or for determining, the genuineness, accuracy or validity thereof, or of auditsthe authority of the Person signing or presenting the same; and is (v) may consult counsel satisfactory to it, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. Documents and written materials referred to in this Section 2.1(d)(iii)(A) include, without limitation, e-mail and other electronic transmissions capable of being printed, whether or not they are in fact printed; and any such e-mail or other electronic transmission may be deemed and treated by the Escrow Agent as having been signed or presented by a Person if it bears, as sender, the Person’s e-mail address.
(B) The Escrow Agent shall not be liable to anyone for any action taken or omitted to be taken by it hereunder, except in the same terms as that set out case of Escrow Agent’s gross negligence or willful misconduct in this clause 41.3 (including this clause 41.3.5 subject only to modification to refer to the correct designation breach of the equivalent party as Escrow Agent Duties. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGE OR LOSS (INCLUDING BUT NOT LIMITED TO LOST PROFITS) WHATSOEVER, EVEN IF THE ESCROW AGENT HAS BEEN INFORMED OF THE LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
(C) The Company hereby indemnifies and holds harmless the Service Provider Escrow Agent from and Sub-contractor as against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable counsel fees and expenses, which the case Escrow Agent may be. The Service Provider shall also include in every Sub-contract: a right for suffer or incur by reason of any action, claim or proceeding brought against the Service Provider Escrow Agent arising out of or relating to terminate that Sub-contract if the relevant Sub-contractor fails to comply in the performance of its contract with legal obligations in the fields of environmentalEscrow Agent Duties, social unless such action, claim or employment law or if any proceeding is exclusively the result of the termination events willful misconduct, bad faith or gross negligence of the Escrow Agent.
(D) The Escrow Agent has acted as legal counsel to the Placement Agent in connection with this Agreement and the other Transaction Documents, is merely acting as a stakeholder under this Agreement and is, therefore, hereby authorized to continue acting as legal counsel to the Placement Agent including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter. The Purchasers hereby expressly consent to permit the Escrow Agent to represent the Placement Agent in connection with all matters relating to this Agreement, including, without limitation, with regard to any dispute arising out of this Agreement, the other Transaction Documents, the Escrow Amount or any other matter, and hereby waives any conflict of interest or appearance of conflict or impropriety with respect to such representation. Each of the Purchasers has consulted with its own counsel specifically about this Section 2.1(d) to the extent they deemed necessary, and has entered into this Agreement after being satisfied with such advice.
(E) The Escrow Agent shall have the right at any time to resign for any reason and be discharged of its duties as escrow agent hereunder (including without limitation the Escrow Agent Duties) by giving written notice of its resignation to the Company, the Placement Agent and the Purchasers at least ten (10) calendar days prior to the specified effective date of such resignation. All obligations of the Escrow Agent hereunder shall cease and terminate on the effective date of its resignation and its sole responsibility thereafter shall be to hold the Escrow Amount, for a period of ten (10) calendar days following the effective date of resignation, at which time,
(I) if a successor escrow agent shall have been appointed and have accepted such appointment in clause 64.3 a writing to both the Company and the Purchasers, then upon written notice thereof given to each of the Purchasers, the Escrow Agent shall deliver the Escrow Amount to the successor escrow agent, and upon such delivery, the Escrow Agent shall have no further liability or obligation; or
(Termination RightsII) occur; if a successor escrow agent shall not have been appointed, for any reason whatsoever, the Escrow Agent shall at its option in its sole discretion, either (A) deliver the Escrow Amount to a court of competent jurisdiction selected by the Escrow Agent and a requirement give written notice thereof to the Company, the Placement Agent and the Purchasers, or (B) continue to hold the Escrow Amount in escrow pending written direction from the Company and the Placement Agent in form and formality satisfactory to the Escrow Agent.
(F) In the event that the Sub-contractor includes Escrow Agent shall be uncertain as to its duties or rights hereunder or shall receive instructions with respect to the Escrow Amount or any portion thereunder which, in its sole discretion, are in conflict either with other instructions received by it or with any provision of this Agreement, the Escrow Agent shall have the absolute right to suspend all further performance of its duties under this Agreement (except for the safekeeping of such Escrow Amount) until such uncertainty or conflicting instructions have been resolved to the Escrow Agent’s sole satisfaction by final judgment of a provision having court of competent jurisdiction, joint written instructions from the same effect as clause 41.4.1 Company, the Placement Agent and all of the Purchasers, or otherwise. In the event that any controversy arises between the Company and one or more of the Purchasers or any other party with respect to this Agreement or the Escrow Amount, the Escrow Agent shall not be required to determine the proper resolution of such controversy or the proper disposition of the Escrow Amount, and shall have the absolute right, in any Sub-contract which it awards. Where requested its sole discretion, to deposit the Escrow Amount with the clerk of a court selected by the Purchaser, copies Escrow Agent and file a suit in interpleader in that court and obtain an order from that court requiring all parties involved to litigate in that court their respective claims arising out of any Sub-contract must be sent or in connection with the Escrow Amount. Upon the deposit by the Service Provider to the Purchaser as soon as reasonably practicable. Where the Service Provider proposes to enter into a Sub-contract it must: advertise its intention to do so in at least one trade journal and the Public Contracts Scotland Portal; and follow a procedure leading to the selection Escrow Agent of the Sub-contractor which ensures reasonable competition following principles Escrow Amount with the clerk of equal treatmentsuch court in accordance with this provision, non-discrimination the Escrow Agent shall thereupon be relieved of all further obligations and transparency and which ensures that such procedure is accessible by small and medium enterprises. Changereleased from all liability hereunder.
(G) The provisions of this Section 2.1(d) shall survive any termination of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Wonder Auto Technology, Inc)