Without limiting Section 3. 4.1.1, IFA’s Oversight rights shall include the following:
a. Monitoring and auditing Developer and its Books and Records to determine compliance with requirements of the PPA Documents and the approved Project Management Plan, including (i) audit review of compliance with quality procedures and processes under the Design Quality Management Plan and Construction Quality Management Plan, (ii) audit review of Design Documents, Plans, Construction Documents, field work plans, land surveys, mapping, other data collection tasks, other Submittals and other Books and Records, and (iii) audit of performance of the activities set forth in the Public Involvement Plan, as provided in Section 6 of the Technical Provisions;
b. Conducting audits of all design and pre-design activities for the Project as needed to ascertain and evaluate Developer’s design quality and safety control processes, including (i) review of engineering calculations, engineering reports, and findings, (ii) review of the work of Developer’s Environmental Compliance Manager (set forth in Section 7.3 of the Technical Provisions) for compliance with the Environmental Compliance and Mitigation Plan, and (iii) review of certifications that Developer’s quality control checks of final Construction Documents have been performed and documented, and that the Construction Documents conform to the requirements of the PPA Documents;
c. Conducting audits of all construction-related activities for the Project as needed to audit Developer’s construction quality and safety control processes, including (i) auditing the services of Developer’s accredited laboratories and associated testing devices and equipment, (ii) reviewing Developer’s construction quality procedures, including conducting limited field monitoring and inspections as needed for audit purposes of construction activities, materials, and system components, as indicated in the PPA Documents, (iii) auditing Developer’s records of all materials, materials tests, materials certifications, and performance tests for Project systems, (iv) reviewing and investigating Project progress, Project quality, Deviations, Defects, and rectification of Nonconforming Work, and (v) conducting field monitoring and inspections in connection with IFA’s certifications of Substantial Completion and Final Acceptance;
d. Conducting monthly reviews of Project documentation and files as set forth in Section 1.5.2.6 of the Technical Provisions;
e. Conducting material tests, accordi...
Without limiting Section 3. 2(a), each Participant shall be entitled to one vote on any matter presented to the Participants for their consideration at any meeting of the Participants (or by written action of the Participants in lieu of a meeting).
Without limiting Section 3. 1(a), each Stockholder hereby agrees, separately and not jointly, with the Company not to Transfer all or any portion of the Shares or Registrable Securities unless and until:
(i) there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement; or
(ii) (A) the transferee has agreed in writing to be bound by the terms of this Agreement, (B) such Stockholder shall have notified the Company of the proposed Transfer and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed Transfer, and (C) if reasonably requested by the Company, such Stockholder shall have furnished the Company with an opinion of counsel, reasonably satisfactory to the Company, that such Transfer will not require registration of such shares under the Securities Act. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144, except in unusual circumstances. After its Initial Offering, the Company will not require any transferee pursuant to Rule 144 to be bound by the terms of this Agreement if the shares so transferred do not remain Registrable Securities hereunder following such transfer.
Without limiting Section 3. 1.2, throughout the Term, Seller shall provide Buyer with ***. *** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission.
(a) Seller shall promptly notify Buyer of the ***, (b) the *** that are functionally equivalent to the products offered or sold to such other customer shall be *** for *** so that the *** by such other customer (the ***), and (c) for Products that Seller has already purchased since the date on which the *** Buyer may *** that become due and owing under Invoices *** by such other customer and the applicable ***. The *** shall apply to all Products then subject to Purchase Orders and to all Products ***. Buyer and Seller shall make an adjustment on the Purchase Order, Order Acknowledgement or pricing information (whichever method is most easily managed by each parties order processing teams) to document such change in Unit Price. Buyer shall have the right to audit Seller’s books and records pursuant to Section 18.1 to confirm Seller’s compliance with this Section 3.1.3.
Without limiting Section 3. 1(a), the Manager shall have the sole power and authority to effect any of the following by the Company or any of its Subsidiaries in one or a series of related transactions, in each case without the vote, consent or approval of any Member, unless otherwise provided in this Agreement: (i) any sale, lease, transfer, exchange or other disposition of any, all or substantially all of the assets of the Company (including the exercise or grant of any conversion, option, privilege or subscription right or any other right available in connection with any assets at any time held by the Company); (ii) any merger, consolidation, reorganization or other combination of the Company with or into another entity, (iii) any acquisition; (iv) any issuance of debt or equity securities; (v) any incurrence of indebtedness; or (vi) any dissolution. Except for any vote, consent or approval of any Member expressly required by this Agreement, if a vote, consent or approval of the Members is required by the Act or other applicable law with respect to any action to be taken by the Company or matter considered by the Manager, each Member will be deemed to have consented to or approved such action or voted on such matter in accordance with the consent or approval of the Manager on such action or matter.
Without limiting Section 3. 1 of the Agreement, the Services include (a) the services, functions and responsibilities described in this Attachment; and (b) the services, functions and responsibilities identified in the roles and responsibilities matrices contained within this Attachment for which Supplier is responsible (i.e., those Services which have an “X” in the column labeled Supplier).
Without limiting Section 3. 1(a), the Company is so qualified or licensed in each jurisdiction listed in Schedule 3.1 of the Company Disclosure Schedule. Schedule 3.1 of the Company Disclosure Schedule also contains a true, complete and correct listing of the locations of all sales offices and any other office or facility of the Company and a true, complete and correct list of all states or foreign jurisdictions in which the Company maintains employees. The Company has delivered or made available to Purchaser on the Electronic Data Room true, complete and correct copies of its certificate of incorporation and bylaws of the Company, each as amended through the date of this Agreement (the “Charter Documents”). The minute books of the Company are true, complete and correct in all material respects.
Without limiting Section 3. 1.1 and notwithstanding anything to the contrary in this Agreement, the Work shall include all work, including all engineering, procurement and construction work, performed by Owner’s Prior EPC Contractor related to the Project, as Contractor is taking responsibility for such work as if it performed the Work itself, and Contractor waives all claims for an adjustment to the Guaranteed Maximum Price or any Milestone Date or any other Changed Criteria relating to the performance by Owner’s Prior EPC Contractor, and such claims shall not be the basis for Contractor’s failure to achieve the requirements of this Agreement, including the Minimum Acceptance Criteria. Without limiting the foregoing, to the extent that Owner’s Prior EPC Contractor performed defective work under Owner’s Prior EPC Agreement that was not performed pursuant to a Subcontract and which Owner is unable to assign its rights against Owner’s Prior EPC Contractor to Contractor to enforce the warranties related to such defective work, Owner shall reasonably cooperate with Contractor and make reasonable efforts to enforce such warranties against Owner’s Prior EPC Contractor for defective work; provided that, (i) in no event does the foregoing relieve Contractor of its responsibilities for the Work (including any work performed by Owner’s Prior EPC Contractor) or relieve Contractor of any liability for the Work (including any work performed by Owner’s Prior EPC Contractor), and (ii) such reasonable efforts shall not require litigation or arbitration against Owner’s Prior EPC Contractor.
Without limiting Section 3. 1.1, the Parties acknowledge and agree that (a) notwithstanding anything to the contrary herein, [**] and (b) the Development Plan as of the Effective Date contains clinical trial(s) (or arms thereof) that are not yet set forth in the protocol for such clinical trial(s) [**], and the JSC shall develop and approve [**], in each case, for incorporation into the Development Plan. For clarity, [**].
Without limiting Section 3. 12(a), since January 1, 2019, each of the Seller, the Newbury Fund Upper-Tier Entities and the Newbury Funds has made all material Regulatory Filings necessary for the conduct of the Business under and pursuant to applicable Law (including, for the avoidance of doubt, Form ADV with respect to the Seller). All such Regulatory Filings were, at the time such Regulatory Filings were made, true, correct and complete in all material respects. The Seller has not received written notice from any Governmental Authority that any such Regulatory Filing is deficient, incomplete or otherwise has not been received when due.
