Project Financing. B.1. The Foundation hereby agrees to fund, by Conditional Grant, the implementation of the Proposal in the maximum sum of $ or 50% of the actual expenditures on the Project, as contemplated in the Approved Project Budget, whichever is less, and at the times and as may otherwise be set forth in Annex B hereto. B.2. The Proposer shall provide in timely fashion all budgetary funds in excess of those provided hereunder by the Foundation. B.3. Proposer shall make Repayments to the Foundation based on Gross Sales. B.3.1. The Repayments by the Proposer shall be made on the following basis: a) The Conditional Grant shall be repaid in U.S. Dollars at the rate of 5% of the Gross Sales, such Repayments to be in equivalent dollars valued at time of Repayment. The rate of change of value shall be that designated in Annex C hereto. b) When the Proposer shall have repaid the following maximum percentages in equivalent dollars valued at the time of Repayment (as determined in accordance with Annex C) of the Conditional Grant in any of the following years, no additional payments to the Foundation on account of the Conditional Grant shall be required. Years following date of Termination of Project* *the date of Termination of Project shall not be affected by any extension for carrying out the development work of the Product that may be agreed by the Foundation B.3.2. The Commercial Product shall be deemed to have been sold, or otherwise commercially exploited, if the Commercial Product, or any part of it, or any improvement, modification or extension of the Commercial Product is put to the benefit of a third party, whether directly or indirectly, and whether standing alone or incorporated into or co-joined with other hardware or processes, and for which benefit the said third party gives something of value. This provision shall not apply to transactions between the Participants or between the Participants and their parents, subsidiaries or other Affiliates unless the transaction relates to the use of the Commercial Product, or any part of it, and/or any improvement, modification or extension of it, by any one of the aforesaid as a purchaser. Should any such parent, subsidiary or other Affiliate resell the Commercial Product separately identified or incorporated in a system, the sales price shall be the price to third parties from the parent, subsidiary or Affiliate making the sale. B.3.3. If the Commercial Product or any part of it is a part of another product (not developed as part of or otherwise derived from the Project) sold, or otherwise commercially exploited, the sales price of such product for purposes of calculating Repayments according to Section B.3. shall be that portion of the sales price of that product that is represented by the Commercial Product as may be agreed upon by the Proposer and the Foundation, or if, despite good faith efforts by the Proposer and the Foundation to agree upon said portion of the sales price and the parties have not reached agreement, then as shall be reasonably established by the Foundation. If there shall have been established a market price for the Commercial Product, that market price shall be the basis for Repayments according to Section B.3., notwithstanding the incorporation of the Commercial Product in another product as aforesaid. B.4. All Repayments due the Foundation shall be calculated on a semi-annual calendar basis. Sales reports reflecting the actual sales for each semi-annual calendar period as well as a sales forecast for the next two (2) years shall be submitted by each Participant and certified by each Participant’s chief executive officer or, in the case of a publicly traded corporation, the managing officer of the relevant unit of such corporation. Such sales reports shall be submitted even if there have been no sales for such semi-annual calendar period. The sales reports shall accurately represent the amount receivable by each Participant from the Gross Sales of the Commercial Product, and, to the extent applicable, the Product, as well as revenue from any License Agreement as referred to in Section B.6. Any and all material misrepresentation or inaccuracy in said sales reports shall constitute a fundamental breach of this Agreement pursuant to Section I.1. and the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3, I.4., I.5. and I.7. shall apply in every respect. B.4.1. The sales report together with any payment that may be due shall be submitted within ninety (90) calendar days following the end of each semi-annual period. Repayments to the Foundation shall commence at the end of the semi-annual period during which the first sale was made. All late Repayments shall bear interest at the Late Payment Interest Rate.
Appears in 3 contracts
Samples: Cooperation and Project Funding Agreement, Cooperation and Project Funding Agreement, Cooperation and Project Funding Agreement
Project Financing. B.1. The Foundation hereby agrees to fund, by Conditional Grant, the implementation of the Proposal in the maximum sum of $ or 50% of the actual expenditures on the Project, as contemplated in the Approved Project Budget, whichever is less, and at the times and as may otherwise be set forth in Annex B hereto.
B.2. The Proposer shall provide in timely fashion all budgetary funds in excess of those provided hereunder by the Foundation.
B.3. Proposer shall make Repayments to the Foundation based on Gross Sales.
B.3.1. The Repayments by the Proposer shall be made on the following basis:
a) The Conditional Grant shall be repaid in U.S. Dollars at the rate of 5% of the Gross Sales, such Repayments to be in equivalent dollars valued at time of Repayment. The rate of change of value shall be that designated in Annex C hereto.
b) When the Proposer shall have repaid the following maximum percentages in equivalent dollars valued at the time of Repayment (as determined in accordance with Annex C) of the Conditional Grant in any of the following years, no additional payments to the Foundation on account of the Conditional Grant shall be required. Years following date of Termination of Project* 1 100% 2 113% 3 125% 4 138% 5 or more 150% *the date of Termination of Project shall not be affected by any extension for carrying out the development work of the Product Product, that may be agreed by the Foundation
B.3.2. The Commercial Product shall be deemed to have been sold, or otherwise commercially exploited, if the Commercial Product, or any part of it, or any improvement, modification or extension of the Commercial Product is put to the benefit of a third party, whether directly or indirectly, and whether standing alone or incorporated into or co-joined with other hardware or processes, and for which benefit the said third party gives something of value. This provision shall not apply to transactions between the Participants or between the Participants and their parents, subsidiaries or other Affiliates unless the transaction relates to the use of the Commercial Product, or any part of it, and/or any improvement, modification or extension of it, by any one of the aforesaid as a purchaser. Should any such parent, subsidiary or other Affiliate resell the Commercial Product separately identified or incorporated in a system, the sales price shall be the price to third parties from the parent, subsidiary or Affiliate making the sale.
B.3.3. If the Commercial Product or any part of it is a part of another product (not developed as part of or otherwise derived from the Project) sold, or otherwise commercially exploited, the sales price of such product for purposes of calculating Repayments according to Section B.3. shall be that portion of the sales price of that product that is represented by the Commercial Product as may be agreed upon by the Proposer and the Foundation, or if, despite good faith efforts by the Proposer and the Foundation to agree upon said portion of the sales price and the parties have not reached agreement, then as shall be reasonably established by the Foundation. If there shall have been established a market price for the Commercial Product, that market price shall be the basis for Repayments according to Section B.3., notwithstanding the incorporation of the Commercial Product in another product as aforesaid.
B.4. All Repayments due the Foundation shall be calculated on a semi-annual calendar basis. Sales reports reflecting the actual sales for each semi-annual calendar period as well as a sales forecast for the next two (2) years shall be submitted by each Participant and certified by each Participant’s chief executive officer or, in the case of a publicly traded corporation, the managing officer of the relevant unit of such corporation. Such sales reports shall be submitted even if there have been no sales for such semi-annual calendar period. The sales reports shall accurately represent the amount receivable by each Participant from the Gross Sales of the Commercial Product, and, to the extent applicable, the Product, as well as revenue from any License Agreement as referred to in Section B.6. Any and all material misrepresentation or inaccuracy in said sales reports shall constitute a fundamental breach of this Agreement pursuant to Section I.1. and the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3, I.4., I.5. and I.7. shall apply in every respect.
B.4.1. The sales report together with any payment that may be due shall be submitted within ninety (90) calendar days following the end of each semi-annual period. Repayments to the Foundation shall commence at the end of the semi-annual period during which the first sale was made. All late Repayments shall bear interest at the Late Payment Interest Rate.
B.5. The Proposer shall not make an Outright Sale to a third party of any portion of the Product, prior to Full Repayment to the Foundation, without the prior written consent of the Foundation.
B.5.1. The Proposer shall furnish to the Foundation reasonable prior notice with respect to any proposed sale as referred to in Section B.5., the notice to include the name of the prospective purchaser, the price and the other terms of the proposed sale, and all other relevant information concerning the proposed sale.
B.5.2. The Foundation shall promptly provide consent to a sale as referred to in Section B.5., after receipt and review of the notice referred to above, provided that its rights pursuant to this Agreement are fully guaranteed to the Foundation’s satisfaction, and that the Foundation is satisfied that the proposed sale is at a price and upon terms no less than the actual market value of the portion of the Product. The Foundation shall be entitled in its sole discretion to designate a representative or representatives to review the terms of the proposed sale and to seek to determine the actual market value of the Product, and the Proposer shall cooperate with, and furnish all pertinent information, to any such representative or representatives.
B.5.3. Should there be an Outright Sale of any portion of the Product to a third party prior to Full Repayment to the Foundation by the Proposer, by either Participant, or by any Affiliate of either Participant, one-half of all proceeds of the sale shall be applied as received until there has been Full Repayment to the Foundation. If any such sale is (i) in exchange for a non-cash asset or (ii) part of the sale of a group of assets, and no separate value is assigned by the parties to the portion of the Product sold, the Proposer and the Foundation shall seek to agree: as to (i) the value of the asset received; and as to (ii) the portion of the consideration that can be reasonably allocated to the sale. If no such agreement is reached within a reasonable time, or if any value assigned by the parties is in the view of the Foundation not reasonable under all of the circumstances, the matter shall be resolved pursuant to Section M.4. Payments due and not made following receipt of proceeds by the Proposer shall bear interest at the Late Payment Interest Rate. Payments under this SubSection B.5.3. shall be deemed payments against Proposer's obligations under Section B.3. and, for the avoidance of doubt, the payments in this SubSection B.5.3., together with any other Repayments, shall not exceed the maximum percentages set out in SubSection B.3.1.b.
B.5.4. At any time prior to Full Repayment to the Foundation the Proposer shall provide notice to the Foundation, either prior to, or no later than thirty (30) calendar days after any Transfer of Control of either Participant as a result of the sale of shares, or a merger or an amalgamation of either of the Participants with any other company. Any failure to provide notice as provided in this Section B.5.4. within the time specified herein shall constitute a fundamental breach (or breach for cause) of this Agreement pursuant to Section I and, unless the Proposer shall have cured the breach, the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3., I.4., I.5. and I.7. shall apply in every respect.
B.5.5. In the case of any Transfer of Control of a Participant, or in the case of a merger or amalgamation, all as referred to in Section B.5.4., subject to the Proposer providing reasonable prior notice thereof, there will be a rebuttable presumption that the Transfer of Control, or the merger or amalgamation, as the case may be, will lead to termination of Project prior to the Termination of Product Development, or if after the Termination of Product Development, a cessation of marketing of the Product, and as a result any of such events shall be deemed to constitute an Outright Sale of the Product to a third party pursuant to Section B.5.3., notwithstanding any other provision of this Agreement. The foregoing presumptions will be subject to possible rebuttal by the Proposer only by the presentation of suitable detailed evidence to the Foundation to be submitted no later than ninety (90) days after the Transfer of Control, or the merger or amalgamation has been completed, as the case may be. The Foundation will consider any such presentation of evidence made in a timely manner as provided above, in good faith, and will decide, in its sole discretion, in which instances to agree that the Transfer of Control, or the merger or amalgamation, as the case may be, shall not be deemed to be equivalent to such an Outright Sale. In all other cases, the Transfer of Control, or the merger or amalgamation, as the case may be, shall be deemed to constitute such an Outright Sale.
B.6. If the Product becomes the subject of any License Agreement between Proposer, either Participant, or an Affiliate of either Participant, on the one hand, and a third party, on the other hand, Proposer shall pay to the Foundation 30% of all payments received by it or by any other such company under such License Agreement. Payments under this Section B.6. shall be deemed payments against Proposer's obligations under Section B.3. and, for the avoidance of doubt, the payments in this Section B.6., together with any other Repayments, shall not exceed the maximum percentages set out in SubSection B.3.1.b.
Appears in 1 contract
Project Financing. B.1. The Foundation hereby agrees to fund, by Conditional Grant, the implementation of the Proposal in the maximum sum of $ or 50% of the actual expenditures on the Project, as contemplated in the Approved Project Budget, whichever is less, and at the times and as may otherwise be set forth in Annex B hereto.
B.2. The Proposer shall provide in timely fashion all budgetary funds in excess of those provided hereunder by the Foundation.
B.3. Proposer shall make Repayments to the Foundation based on Gross Sales.
B.3.1. The Repayments by the Proposer shall be made on the following basis:
a) The Conditional Grant shall be repaid in U.S. Dollars at the rate of 5% of the Gross Sales, such Repayments to be in equivalent dollars valued at time of Repayment. The rate of change of value shall be that designated in Annex C hereto.
b) When the Proposer shall have repaid the following maximum percentages in equivalent dollars valued at the time of Repayment (as determined in accordance with Annex C) of the Conditional Grant in any of the following years, no additional payments to the Foundation on account of the Conditional Grant shall be required. Years following date of Termination of Project* *the date of Termination of Project shall not be affected by any extension for carrying out the development work of the Product that may be agreed by the Foundation
B.3.2. The Commercial Product shall be deemed to have been sold, or otherwise commercially exploited, if the Commercial Product, or any part of it, or any improvement, modification or extension of the Commercial Product is put to the benefit of a third party, whether directly or indirectly, and whether standing alone or incorporated into or co-joined with other hardware or processes, and for which benefit the said third party gives something of value. This provision shall not apply to transactions between the Participants or between the Participants and their parents, subsidiaries or other Affiliates unless the transaction relates to the use of the Commercial Product, or any part of it, and/or any improvement, modification or extension of it, by any one of the aforesaid as a purchaser. Should any such parent, subsidiary or other Affiliate resell the Commercial Product separately identified or incorporated in a system, the sales price shall be the price to third parties from the parent, subsidiary or Affiliate making the sale.
B.3.3. If the Commercial Product or any part of it is a part of another product (not developed as part of or otherwise derived from the Project) sold, or otherwise commercially exploited, the sales price of such product for purposes of calculating Repayments according to Section B.3. shall be that portion of the sales price of that product that is represented by the Commercial Product as may be agreed upon by the Proposer and the Foundation, or if, despite good faith efforts by the Proposer and the Foundation to agree upon said portion of the sales price and the parties have not reached agreement, then as shall be reasonably established by the Foundation. If there shall have been established a market price for the Commercial Product, that market price shall be the basis for Repayments according to Section B.3., notwithstanding the incorporation of the Commercial Product in another product as aforesaid.
B.4. All Repayments due the Foundation shall be calculated on a semi-annual calendar basis. Sales reports reflecting the actual sales for each semi-annual calendar period as well as a sales forecast for the next two (2) years shall be submitted by each Participant and certified by each Participant’s chief executive officer or, in the case of a publicly traded corporation, the managing officer of the relevant unit of such corporation. Such sales reports shall be submitted even if there have been no sales for such semi-annual calendar period. The sales reports shall accurately represent the amount receivable by each Participant from the Gross Sales of the Commercial Product, and, to the extent applicable, the Product, as well as revenue from any License Agreement as referred to in Section B.6. Any and all material misrepresentation or inaccuracy in said sales reports shall constitute a fundamental breach of this Agreement pursuant to Section I.1. and the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3, I.4., I.5. and I.7. shall apply in every respect.
B.4.1. The sales report together with any payment that may be due shall be submitted within ninety (90) calendar days following the end of each semi-annual period. Repayments to the Foundation shall commence at the end of the semi-annual period during which the first sale was made. All late Repayments shall bear interest at the Late Payment Interest Rate.
B.5. The Proposer shall not make an Outright Sale to a third party of any portion of the Product, prior to Full Repayment to the Foundation, without the prior written consent of the Foundation.
B.5.1. The Proposer shall furnish to the Foundation reasonable prior notice with respect to any proposed sale as referred to in Section B.5., the notice to include the name of the prospective purchaser, the price and the other terms of the proposed sale, and all other relevant information concerning the proposed sale.
B.5.2. The Foundation shall promptly provide consent to a sale as referred to in Section B.5., after receipt and review of the notice referred to above, provided that its rights pursuant to this Agreement are fully guaranteed to the Foundation’s satisfaction, and that the Foundation is satisfied that the proposed sale is at a price and upon terms no less than the actual market value of the portion of the Product. The Foundation shall be entitled in its sole discretion to designate a representative or representatives to review the terms of the proposed sale and to seek to determine the actual market value of the Product, and the Proposer shall cooperate with, and furnish all pertinent information, to any such representative or representatives.
B.5.3. Should there be an Outright Sale of any portion of the Product to a third party prior to Full Repayment to the Foundation by the Proposer, by either Participant, or by any Affiliate of either Participant, one-half of all proceeds of the sale shall be applied as received until there has been Full Repayment to the Foundation. If any such sale is (i) in exchange for a non-cash asset or (ii) part of the sale of a group of assets, and no separate value is assigned by the parties to the portion of the Product sold, the Proposer and the Foundation shall seek to agree: as to (i) the value of the asset received; and as to (ii) the portion of the consideration that can be reasonably allocated to the sale. If no such agreement is reached within a reasonable time, or if any value assigned by the parties is in the view of the Foundation not reasonable under all of the circumstances, the matter shall be resolved pursuant to Section M.4. Payments due and not made following receipt of proceeds by the Proposer shall bear interest at the Late Payment Interest Rate. Payments under this Section B.5.3. shall be deemed payments against Proposer's obligations under Section B.3. and, for the avoidance of doubt, the payments in this Section B.5.3., together with any other Repayments, shall not exceed the maximum percentages set out in Section B.3.1.(b).
B.5.4. At any time prior to Full Repayment to the Foundation the Proposer shall provide notice to the Foundation, either prior to, or no later than thirty (30) calendar days after any Transfer of Control of either Participant as a result of the sale of shares, or a merger or an amalgamation of either of the Participants with any other company. Any failure to provide notice as provided in this Section B.5.4. within the time specified herein shall constitute a fundamental breach (or breach for cause) of this Agreement pursuant to Section I.1. and, unless the Proposer shall have cured the breach pursuant to Section I.2., the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3., I.4., I.5. and I.7. shall apply in every respect.
B.5.5. In the case of any Transfer of Control of a Participant, or in the case of a merger or amalgamation, all as referred to in Section B.5.4., subject to the Proposer providing reasonable prior notice thereof, there will be a rebuttable presumption that the Transfer of Control, or the merger or amalgamation, as the case may be, will lead to termination of Project prior to the Termination of Product Development, or if after the Termination of Product Development, a cessation of marketing of the Product, and as a result any of such events shall be deemed to constitute an Outright Sale of the Product to a third party pursuant to Section B.5.3., notwithstanding any other provision of this Agreement. The foregoing presumptions will be subject to possible rebuttal by the Proposer only by the presentation of suitable detailed evidence to the Foundation to be submitted no later than ninety (90) days after the Transfer of Control, or the merger or amalgamation has been completed, as the case may be. The Foundation will consider any such presentation of evidence made in a timely manner as provided above, in good faith, and will decide, in its sole discretion, in which instances to agree that the Transfer of Control, or the merger or amalgamation, as the case may be, shall not be deemed to be equivalent to such an Outright Sale. In all other cases, the Transfer of Control, or the merger or amalgamation, as the case may be, shall be deemed to constitute such an Outright Sale.
B.6. If the Product becomes the subject of any License Agreement between Proposer, either Participant, or an Affiliate of either Participant, on the one hand, and a third party, on the other hand, Proposer shall pay to the Foundation 30% of all payments received by it or by any other such company under such License Agreement. Payments under this Section B.6. shall be deemed payments against Proposer's obligations under Section B.3. and, for the avoidance of doubt, the payments in this Section B.6., together with any other Repayments, shall not exceed the maximum percentages set out in Section B.3.1.(b)
Appears in 1 contract
Project Financing. B.1. The Foundation hereby agrees to fund, by Conditional Grant, the implementation of the Proposal in the maximum sum of $ or 50% of the actual expenditures on the Project, as contemplated in the Approved Project Budget, whichever is less, and at the times and as may otherwise be set forth in Annex B hereto.
B.2. The Proposer shall provide in timely fashion all budgetary funds in excess of those provided hereunder by the Foundation.
B.3. Proposer shall make Repayments to the Foundation based on Gross Sales.
B.3.1. The Repayments by the Proposer shall be made on the following basis:
a) The Conditional Grant shall be repaid in U.S. Dollars at the rate of 5% of the Gross Sales, such Repayments to be in equivalent dollars valued at time of Repayment. The rate of change of value shall be that designated in Annex C hereto.
b) When the Proposer shall have repaid the following maximum percentages in equivalent dollars valued at the time of Repayment (as determined in accordance with Annex C) of the Conditional Grant in any of the following years, no additional payments to the Foundation on account of the Conditional Grant shall be required. Years following date of Termination of Project* *the date of Termination of Project shall not be affected by any extension for carrying out the development work of the Product that may be agreed by the Foundation
B.3.2. The Commercial Product shall be deemed to have been sold, or otherwise commercially exploited, if the Commercial Product, or any part of it, or any improvement, modification or extension of the Commercial Product is put to the benefit of a third party, whether directly or indirectly, and whether standing alone or incorporated into or co-joined with other hardware or processes, and for which benefit the said third party gives something of value. This provision shall not apply to transactions between the Participants or between the Participants and their parents, subsidiaries or other Affiliates unless the transaction relates to the use of the Commercial Product, or any part of it, and/or any improvement, modification or extension of it, by any one of the aforesaid as a purchaser. Should any such parent, subsidiary or other Affiliate resell the Commercial Product separately identified or incorporated in a system, the sales price shall be the price to third parties from the parent, subsidiary or Affiliate making the sale.
B.3.3. If the Commercial Product or any part of it is a part of another product (not developed as part of or otherwise derived from the Project) sold, or otherwise commercially exploited, the sales price of such product for purposes of calculating Repayments according to Section B.3. shall be that portion of the sales price of that product that is represented by the Commercial Product as may be agreed upon by the Proposer and the Foundation, or if, despite good faith efforts by the Proposer and the Foundation to agree upon said portion of the sales price and the parties have not reached agreement, then as shall be reasonably established by the Foundation. If there shall have been established a market price for the Commercial Product, that market price shall be the basis for Repayments according to Section B.3., notwithstanding the incorporation of the Commercial Product in another product as aforesaid.
B.4. All Repayments due the Foundation shall be calculated on a semi-annual calendar basis. Sales reports reflecting the actual sales for each semi-annual calendar period as well as a sales forecast for the next two (2) years shall be submitted by each Participant and certified by each Participant’s chief executive officer or, in the case of a publicly traded corporation, the managing officer of the relevant unit of such corporation. Such sales reports shall be submitted even if there have been no sales for such semi-annual calendar period. The sales reports shall accurately represent the amount receivable by each Participant from the Gross Sales of the Commercial Product, and, to the extent applicable, the Product, as well as revenue from any License Agreement as referred to in Section B.6. Any and all material misrepresentation or inaccuracy in said sales reports shall constitute a fundamental breach of this Agreement pursuant to Section I.1. and the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3, I.4., I.5. and I.7. shall apply in every respect.
B.4.1. The sales report together with any payment that may be due shall be submitted within ninety (90) calendar days following the end of each semi-annual period. Repayments to the Foundation shall commence at the end of the semi-annual period during which the first sale was made. All late Repayments shall bear interest at the Late Payment Interest Rate.
B.5. The Proposer shall not make an Outright Sale to a third party of any portion of the Product, prior to Full Repayment to the Foundation, without the prior written consent of the Foundation.
B.5.1. The Proposer shall furnish to the Foundation reasonable prior notice with respect to any proposed sale as referred to in Section B.5., the notice to include the name of the prospective purchaser, the price and the other terms of the proposed sale, and all other relevant information concerning the proposed sale.
B.5.2. The Foundation shall promptly provide consent to a sale as referred to in Section B.5., after receipt and review of the notice referred to above, provided that its rights pursuant to this Agreement are fully guaranteed to the Foundation’s satisfaction, and that the Foundation is satisfied that the proposed sale is at a price and upon terms no less than the actual market value of the portion of the Product. The Foundation shall be entitled in its sole discretion to designate a representative or representatives to review the terms of the proposed sale and to seek to determine the actual market value of the Product, and the Proposer shall cooperate with, and furnish all pertinent information, to any such representative or representatives.
B.5.3. Should there be an Outright Sale of any portion of the Product to a third party prior to Full Repayment to the Foundation by the Proposer, by either Participant, or by any Affiliate of either Participant, one-half of all proceeds of the sale shall be applied as received until there has been Full Repayment to the Foundation. If any such sale is (i) in exchange for a non-cash asset or (ii) part of the sale of a group of assets, and no separate value is assigned by the parties to the portion of the Product sold, the Proposer and the Foundation shall seek to agree: as to (i) the value of the asset received; and as to (ii) the portion of the consideration that can be reasonably allocated to the sale. If no such agreement is reached within a reasonable time, or if any value assigned by the parties is in the view of the Foundation not reasonable under all of the circumstances, the matter shall be resolved pursuant to Section M.4. Payments due and not made following receipt of proceeds by the Proposer shall bear interest at the Late Payment Interest Rate. Payments under this Section B.5.3. shall be deemed payments against Proposer's obligations under Section B.3. and, for the avoidance of doubt, the payments in this Section B.5.3., together with any other Repayments, shall not exceed the maximum percentages set out in Section B.3.1.(b).
B.5.4. At any time prior to Full Repayment to the Foundation the Proposer shall provide notice to the Foundation, either prior to, or no later than thirty (30) calendar days after any Transfer of Control of either Participant as a result of the sale of shares, or a merger or an amalgamation of either of the Participants with any other company. Any failure to provide notice as provided in this Section B.5.4. within the time specified herein shall constitute a fundamental breach (or breach for cause) of this Agreement pursuant to Section I.1. and, unless the Proposer shall have cured the breach pursuant to Section I.2., the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3., I.4., I.5. and I.7. shall apply in every respect.
B.5.5. In the case of any Transfer of Control of a Participant, or in the case of a merger or amalgamation, all as referred to in Section B.5.4., subject to the Proposer providing reasonable prior notice thereof, there will be a rebuttable presumption that the Transfer of Control, or the merger or amalgamation, as the case may be, will lead to termination of Project prior to the Termination of Product Development, or if after the Termination of Product Development, a cessation of marketing of the Product, and as a result any of such events shall be deemed to constitute an Outright Sale of the Product to a third party pursuant to Section B.5.3., notwithstanding any other provision of this Agreement. The foregoing presumptions will be subject to possible rebuttal by the Proposer only by the presentation of suitable detailed evidence to the Foundation to be submitted no later than ninety (90) days after the Transfer of Control, or the merger or amalgamation has been completed, as the case may be. The Foundation will consider any such presentation of evidence made in a timely manner as provided above, in good faith, and will decide, in its sole discretion, in which instances to agree that the Transfer of Control, or the merger or amalgamation, as the case may be, shall not be deemed to be equivalent to such an Outright Sale. In all other cases, the Transfer of Control, or the merger or amalgamation, as the case may be, shall be deemed to constitute such an Outright Sale.
B.6. If the Product becomes the subject of any License Agreement between Proposer, either Participant, or an Affiliate of either Participant, on the one hand, and a third party, on the other hand, Proposer shall pay to the Foundation 30% of all payments received by it or by any other such company under such License Agreement. Payments under this Section B.6. shall be deemed payments against Proposer's obligations under Section B.3. and, for the avoidance of doubt, the payments in this Section B.6., together with any other Repayments, shall not exceed the maximum percentages set out in Section B.3.1.(b).
Appears in 1 contract
Project Financing. B.1. The Foundation hereby agrees to fund, by Conditional Grant, the implementation of the Proposal in the maximum sum of $ or 50% of the actual expenditures on the Project, as contemplated in the Approved Project Budget, whichever is less, and at the times and as may otherwise be set forth in Annex B hereto.
B.2. The Proposer shall provide in timely fashion all budgetary funds in excess of those provided hereunder by the Foundation.
B.3. Proposer shall make Repayments to the Foundation based on Gross Sales.
B.3.1. The Repayments by the Proposer shall be made on the following basis:
a) The Conditional Grant shall be repaid in U.S. Dollars at the rate of 5% of the Gross Sales, such Repayments to be in equivalent dollars valued at time of Repayment. The rate of change of value shall be that designated in Annex C hereto.
b) When the Proposer shall have repaid the following maximum percentages in equivalent dollars valued at the time of Repayment (as determined in accordance with Annex C) of the Conditional Grant in any of the following years, no additional payments to the Foundation on account of the Conditional Grant shall be required. Years following date of Termination of Project* *the date of Termination of Project shall not be affected by any extension for carrying out the development work of the Product that may be agreed by the Foundation
B.3.2. The Commercial Product shall be deemed to have been sold, or otherwise commercially exploited, if the Commercial Product, or any part of it, or any improvement, modification or extension of the Commercial Product is put to the benefit of a third party, whether directly or indirectly, and whether standing alone or incorporated into or co-joined with other hardware or processes, and for which benefit the said third party gives something of value. This provision shall not apply to transactions between the Participants or between the Participants and their parents, subsidiaries or other Affiliates unless the transaction relates to the use of the Commercial Product, or any part of it, and/or any improvement, modification or extension of it, by any one of the aforesaid as a purchaser. Should any such parent, subsidiary or other Affiliate resell the Commercial Product separately identified or incorporated in a system, the sales price shall be the price to third parties from the parent, subsidiary or Affiliate making the sale.
B.3.3. If the Commercial Product or any part of it is a part of another product (not developed as part of or otherwise derived from the Project) sold, or otherwise commercially exploited, the sales price of such product for purposes of calculating Repayments according to Section B.3. shall be that portion of the sales price of that product that is represented by the Commercial Product as may be agreed upon by the Proposer and the Foundation, or if, despite good faith efforts by the Proposer and the Foundation to agree upon said portion of the sales price and the parties have not reached agreement, then as shall be reasonably established by the Foundation. If there shall have been established a market price for the Commercial Product, that market price shall be the basis for Repayments according to Section B.3., notwithstanding the incorporation of the Commercial Product in another product as aforesaid.
B.4. All Repayments due the Foundation shall be calculated on a semi-annual calendar basis. Sales reports reflecting the actual sales for each semi-annual calendar period as well as a sales forecast for the next two (2) years shall be submitted by each Participant and certified by each Participant’s chief executive officer or, in the case of a publicly traded corporation, the managing officer of the relevant unit of such corporation. Such sales reports shall be submitted even if there have been no sales for such semi-annual calendar period. The sales reports shall accurately represent the amount receivable by each Participant from the Gross Sales of the Commercial Product, and, to the extent applicable, the Product, as well as revenue from any License Agreement as referred to in Section B.6. Any and all material misrepresentation or inaccuracy in said sales reports shall constitute a fundamental breach of this Agreement pursuant to Section I.1. and the Conditional Grant shall be deemed to have been revoked in whole, and the provisions of Sections I.1., I.2., I.3, I.4., I.5. and I.7. shall apply in every respect.
B.4.1. The sales report together with any payment that may be due shall be submitted within ninety (90) calendar days following the end of each semi-annual period. Repayments to the Foundation shall commence at the end of the semi-annual period during which the first sale was made. All late Repayments shall bear interest at the Late Payment Interest Rate.
B.5. The Proposer shall not make an Outright Sale to a third party of any portion of the Product, prior to Full Repayment to the Foundation, without the prior written consent of the Foundation.
B.5.1. The Proposer shall furnish to the Foundation (subject to execution of BIRD’s CDA) reasonable prior notice with respect to any proposed Outright Sale as referred to in Section B.5., the notice to include the name of the prospective purchaser, the price and the other terms of the proposed sale, and all other relevant information concerning the proposed sale.
B.5.2. The Foundation shall promptly provide consent to an Outright Sale as referred to in Section B.5., after receipt and review of the notice referred to above, provided that its rights pursuant to this Agreement are fully guaranteed to the Foundation’s satisfaction, and that the Foundation is satisfied that the proposed sale is at a price and upon terms no less than the actual market value of the portion of the Product. The Foundation shall be entitled in its sole discretion to designate a representative or representatives to review the terms of the proposed Outright Sale and to seek to determine the actual market value of the Product, and the Proposer shall cooperate with, and furnish all pertinent information, to any such representative or representatives.
B.5.3. Should there be an Outright Sale of any portion of the Product to a third party prior to Full Repayment to the Foundation by the Proposer, by either Participant, or by any Affiliate of either Participant, one-half of all proceeds of the Outright Sale shall be applied as received until there has been Full Repayment to the Foundation. If any such Outright Sale is (i) in exchange for a non-cash asset or (ii) part of the sale of a group of assets, and no separate value is assigned by the parties to the portion of the Product sold, the Proposer and the Foundation shall seek to agree: as to (i) the value of the asset received; and as to (ii) the portion of the consideration that can be reasonably allocated to the sale. If no such agreement is reached within a reasonable time, or if any value assigned by the parties is in the view of the Foundation not reasonable under all of the circumstances, the matter shall be resolved pursuant to Section M.4. Payments due and not made following receipt of proceeds by the Proposer shall bear interest at the Late Payment Interest Rate. Payments under this Section B.5.3. shall be deemed payments against Proposer's obligations under Section
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