Views of Calgary Sample Clauses

Views of Calgary. Calgary submitted that the Board must have regard to the source of the evidence before it. Calgary submitted the ATCO Utilities provided no expert witnesses qualified to speak to the drafting, negotiation and interpretation of IT contracts, nor the manner in which such contracts were dealt with in the industry. Calgary conceded that the ATCO witnesses were qualified to speak to company matters, such as the intention of the various ATCO Utilities, or to the numbers regarding expenditures or budgets. However, Calgary argued they were not experts on the general IT industry, outsourcing issues or industry standards. Calgary submitted that the only witness for the ATCO Utilities with any IT experience was Xx. Xxxxxx. Xxxxxxx suggested Xx. Xxxxxx’x experience was limited entirely to his various positions with ATCO.22 Calgary also submitted Xx. Xxxxxx had never been involved with an outsourcing company, nor had he been involved in any outsourcing arrangements outside of the ATCO companies.23 Calgary argued there was no evidence that Xx. Xxxxxx’x personal experience regarding IT outsourcing, and the contracts related thereto, went beyond his experience with ATCO I-Tek. Calgary submitted that Xx. Xxxxxxxx, by contrast to the ATCO witnesses, was clearly an independent expert, and that she was very experienced in the areas of drafting, negotiation and interpretation of information technology contracts and the manner in which such contracts were dealt with in the industry. Calgary noted that Xx. Xxxxxxxx had 23 years of experience in IT 20 ATCO Utilities Argument, page 6 21 ATCO Utilities Argument, pages 7 and 8 22 Exhibit 113-2 – CV of X. Xxxxxx, and Transcript, page 32‌ contracts, with past retainers on a significant number of the major outsourcing transactions in Canada. Calgary argued that the ATCO Utilities’ witnesses were not independent and did not possess the extensive expertise of Xx. Xxxxxxxx. Xxxxxxx submitted that the expertise of the witness was an issue that went to the weight to be given to the evidence provided by that witness. In assessing the appropriateness of the terms and conditions of the Renewal MSA, and their use within the industry, Calgary submitted that the Board should give more weight to the evidence of Xx. Xxxxxxxx and should give little or no weight to that of the ATCO Utilities witnesses.
Sample 1See All (5)
Views of Calgary. Calgary submitted that the provisions related to IP ownership in the Renewal MSA were a significant departure from the ownership provisions in the Original MSA. The Original MSA provided that ownership in and to any new developments, deliverables, and/or know-how arising out of or otherwise created in the course of the Services, including any IP rights therein, belonged to the ATCO Utilities if they were funded substantially by the ATCO Utilities.49 Calgary submitted that in the Renewal MSA, ownership of all of the improvements, enhancements, etc., to existing custom designed programs, any new custom designed programs, and all ATCO I-Tek software were owned by ATCO I-Tek. Calgary disagreed with ATCO’s argument that while the ATCO Utilities would not own any of the IP that they had paid for under the Renewal MSA, such lack of ownership was not a problem because the ATCO Utilities were now using only third party software. Calgary submitted in response that, first, the ATCO Utilities have provided no evidence that they were in fact using only third party software. Second, the evidence was clear that the ATCO Utilities have made significant expenditures, and continue to do so, regarding the development of custom projects.50 Xx. Xxxxxx acknowledged the ATCO Utilities had previously followed a policy of extensive custom developed IT programs.51 48 Transcript, pages 137-138 49 Exhibit 101 - Old MSA, Section 10.8 50 For example: load settlement, work management and the utilities’ financial systems, Vol 3, page 315 51 Transcript, page 42 and page 43 Calgary submitted that Xx. Xxxxxx provided no explanation as to why the ATCO Utilities, after having spent millions on such custom-developed software, would not use them any more and would instead use only third party software. Calgary submitted that it was much more likely that these custom-developed programs would continue to be used by the ATCO Utilities via ATCO I- Tek for many years to come. Under the terms of the Renewal MSA, ATCO I-Tek would own any and all enhancements, alterations, etc., to those custom programs used by the ATCO Utilities. Third, there was a requirement in the Renewal MSA that the ATCO Group commit to 55,000 hours of development, enhancement and consulting services from ATCO I-Tek each year.52 Calgary concluded that ATCO I-Tek would own the product that resulted from those hours. Calgary therefore doubted ATCO’s argument that the ATCO Utilities would only be using third party software. Calgary ...
Sample 1
Views of Calgary. Calgary was a proponent of the Collaborative Process, however, from the experience to date137 Calgary stated that it would not succeed without transparency, objectivity, and clear terms and conditions capable of being benchmarked. Calgary argued the ATCO Utilities attempted to bring evidence on the Collaborative Process through witnesses who were not part of the process and were not at the meeting that included interviews of prospective benchmarkers.138 Calgary submitted correspondence filed prior to the hearing139, set out Calgary’s view that the primary reason for the breakdown in the benchmarking Collaborative Process was that ATCO was unable to agree on the terms of reference. Under cross-examination140 it became clear that while parties agreed on the underlying principles regarding benchmarking, the process broke down over the attempt to deal with those principles in detail through the draft terms of reference.141 Calgary’s request that the Board determine certain terms and conditions of the MSA to be benchmarked, was an attempt to remove some of the details over which there was significant disagreement.
Sample 1
Views of Calgary. Calgary suggested the ATCO Utilities would prefer to set aside an examination of the Renewal MSA, or have only a cursory examination, and move directly to a benchmarking exercise. 108 Transcript, page 488 109 The Board notes that ATCO must have meant Table 13 at page 51 of Decision 2002-069 110 Decision 2002-069, page 50-51 111 Decision 2002-069, page 67 112 Transcript page 274 and page 539 Unfortunately, such an approach served only the ATCO Group. One of the key underpinnings of an assessment of fair market value was the terms and conditions of the Renewal MSA. Calgary submitted that rather than using the benchmarking exercise to see if the ATCO Utilities were paying FMV for the maintenance and development services, given the windfall in ownership of IP, the ATCO Utilities should be paying significantly less than FMV for those services. Calgary suggested there would be no method through which to determine how much less the ATCO Utilities should be paying. Calgary argued the ATCO Utilities have put forward an Agreement that would be virtually impossible to accurately benchmark in the industry, as no agreement would have the same fundamental terms. As a result it would also be virtually impossible to accurately adjust the benchmark to determine how much less the ATCO Utilities should be paying as a result of the IP ownership issue. Calgary further submitted that the ATCO Utilities could not claim that IP ownership was not important to them. The example of the manner in which they handled the ATCO-CIS system, contradicted such a position. The ATCO-CIS system improvements were owned by ATCO I-Tek Business Services (Business Services), but only if they were self-financed by Business Services. Improvements paid for by the ATCO Utilities were owned by the ATCO Utilities. Calgary submitted that Business Services also paid a royalty to the ATCO Utilities to compensate for the ability to leverage the ATCO-CIS system to other customers. Under the Renewal MSA, Calgary submitted ATCO I-Tek did not pay any royalties for ownership or the ability to leverage. In addition, under the Renewal MSA, ATCO I-Tek owned improvements that the ATCO Utilities paid for as well. Unlike the ATCO-CIS example, under the Renewal MSA, the ATCO Utilities were not given a perpetual license to use the enhancements and improvements to these other programs or any new custom programs – even if the ATCO Utilities paid to have them developed.113 Calgary submitted that the purpose of much of its e...
Sample 1
Views of Calgary. Calgary referred to the evidence of Ms. Xxxxxxxx00 wherein it was submitted the Renewal MSA did not provide sufficient remedies to ensure maintenance of the level of service the ATCO Utilities were paying for, since any service level credits were simply a deferral of payments of relatively small amounts, and successive failures to provide service did not result in the ability to terminate the agreement. In addition, the service level credits set out in the Renewal MSA were substantially below what other outsourcers agreed to. Calgary suggested ATCO presented no evidence that the remedies contained in the Renewal MSA were common in the industry. Calgary argued that the only evidence, contrary to that of Xx. Xxxxxxxx appeared in the form of a legal opinion in the Rebuttal Evidence regarding the enforceability of penalties75. Calgary concluded that the remedies provided for in the Renewal MSA set it apart from industry standards. This served to make the benchmarking process more difficult and increased the chances that the benchmarker would have to make assumptions and judgments that might result in more subjective and less objective benchmarking results. 72 Exhibit 102 Schedule C Article 5.2 73 Exhibit 102 Article 16 74 Exhibit 307-3 - Evidence of Xxx-Xxxxx Xxxxxxxx, pages 9 and 10 75 Exhibit 114 - ATCO Rebuttal Evidence, page 9
Sample 1

Related to Views of Calgary

  • Due Incorporation The Company and each of its subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the respective jurisdictions of their incorporation and have the requisite corporate power to own their properties and to carry on their business as now being conducted. The Company and each of its subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in each jurisdiction where the nature of the business conducted or property owned by it makes such qualification necessary, other than those jurisdictions in which the failure to so qualify would not have a material adverse effect on the business, operations or prospects or condition (financial or otherwise) of the Company.

  • Due Incorporation and Good Standing AVRS is a corporation duly organized, validly existing and in good standing under the laws of the state of Nevada.

  • State of Incorporation; Name; No Changes Seller’s state of incorporation is the State of Nevada. Seller’s exact legal name is as set forth in the first paragraph of this Agreement. Seller has not changed its name whether by amendment of its Articles of Incorporation, by reorganization or otherwise, and has not changed its state of incorporation within the four months preceding the Closing Date.

  • Businesses Borrower is presently engaged directly or through its Subsidiaries in the business of oil and gas acquisition, exploration, development and production.

  • DEFINITIONS AND INCORPORATION BY REFERENCE

  • Due Incorporation; Power and Authority The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Delaware with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Statutory Prospectus and the Prospectus.

  • Incorporation All Exhibits attached hereto and referred to herein are hereby incorporated herein and made a part hereof for all purposes as if fully set forth herein.

  • Conduct of Businesses Prior to the Effective Time (a) During the period from the date of this Agreement to the Effective Time or earlier termination of this Agreement, except as expressly contemplated or permitted by this Agreement or as otherwise required by Law or regulatory directive, each of FNB and HBI shall, and shall cause each of their respective Subsidiaries to (i) conduct its business in the ordinary course in all material respects, (ii) use reasonable best efforts to maintain and preserve intact its business organization, employees and advantageous business relationships and retain the services of its key officers and key employees and (iii) take no action that would reasonably be likely to prevent or materially impede or delay the obtaining of, or materially adversely affect the ability of the parties expeditiously to obtain, any necessary approvals of any Regulatory Agency, Governmental Entity or any other person or entity required for the transactions this Agreement contemplates or to perform its respective covenants and agreements under this Agreement or to consummate the transactions contemplated by this Agreement. (b) Subject to applicable Law, including Laws with respect to the exchange of information, the disclosure of confidential supervisory information, the protection of personally identifiable information and the exercise of a controlling influence over the management or policies of another Person, HBI agrees that between the date of this Agreement and the Effective Time: (1) the materials to be presented at the meetings of any HBI Bank loan committee shall be provided to a designated representative of FNB at the same time such materials are provided to such loan committee; (2) HBI shall provide the minutes of each such meeting to the designated FNB representative promptly after such meeting; (3) HBI shall prepare and furnish to FNB at least quarterly an update of the reserves and other allowances for loan losses reflected in HBI’s financial statements included in the HBI Reports as of and for the year ended December 31, 2020 and for the three months ended March 31, 2021; (4) HBI shall promptly notify FNB if HBI or any HBI Subsidiary has been notified by any state or federal bank Regulatory Agency that its reserves are inadequate or that its practices for establishing its reserves or in accounting for delinquent and classified assets generally fail to comply with applicable accounting or regulatory requirements, or that any Regulatory Agency having jurisdiction over HBI or any HBI Subsidiary or HBI’s independent auditor believes such reserves to be inadequate or inconsistent with the historical loss experience of HBI; and (5) HBI shall prepare and furnish to FNB at least quarterly an updated list of all extensions of credit and OREO that have been classified by HBI or any HBI Subsidiary as other loans specifically mentioned, special mention, substandard, doubtful, loss, classified or criticized, credit risk assets, concerned loans or words of similar import; (ii) upon request of FNB, HBI shall furnish to FNB such information to which HBI has access or prepares in the ordinary course of business as FNB may reasonably request regarding any loans, loan relationships and commitments of HBI Bank entered into between June 10, 2021, and the date hereof; and (iii) upon request of FNB, HBI shall furnish to FNB such information to which HBI has access or prepares in the ordinary course of business as FNB may reasonably request regarding any loans, loan relationships and commitments of HBI Bank entered into after the date hereof in which the amount involved is equal to or greater than (i) $10,000,000 on a secured basis and (ii) $2,500,000 on an unsecured or undersecured basis.

  • Bylaws of the Surviving Corporation The Bylaws of Company, as in effect immediately prior to the Effective Time, will be the Bylaws of the Surviving Corporation until thereafter amended in accordance with applicable law.

  • Incorporation; Good Standing 28 7.1.2. Authorization...............................................29 7.1.3. Enforceability..............................................29 7.2.