A LLIANCING AGREEMENT

betweenABC LTDand Subject –B2M Limited
62 Watson Street
Aberdeen
Scotland
AB25 2SU

This Agreement is dated

PARTIES:

Thesis is provided by UK thesis baseABC Limited a company registered number SC[ ] in Scotland under the UK Companies Acts and having its registered office and principal place of business at [ ] (“ABC”)

And

(hereinafter referred to as “XXX”) whose registered office is at

RECITALS:

(A) ABC is a company specialising in providing [ ] for the [ ] industries and wishes to take advantage of [XXX]’s expertise

(B) [XXX] is a company specialising in and wishes to take advantage of the specialisms and market knowledge of ABC;

(C) The Parties wish to take advantage of commercial opportunities in [AAAA] and have therefore agreed to work together in order to use their skills and commercial connections to take advantage of these commercial opportunities to [BBBBB].

OPERATIONAL CLAUSES

1. DEFINITIONS

“Agreement” means this agreement;

“Associated Company” means any holding company or subsidiary of (1) that company; and (2) any holding company or other subsidiary of that company's holding company

“Business Plan” means the Business Plan set out more or less in the form contained in Schedule One to this Agreement as modified by agreement of the Parties from time to time;

“Capability Map” means the diagram attached as Schedule Two to this Agreement as modified by the Parties from time to time.

“Clause” means a clause of this Agreement;

“Confidential Information” means all of the Know-How and all other information relating to the techniques and processes, operations, activities, goods, products, business and/or financial affairs of the relevant Party (in any form and irrespective of the means by or medium through which it is provided or obtained) which is provided by one Party from another Party in the course of performance of this Agreement;

“Contract” means a contract with a Customer;

“Customer” means a party within the Territory (other than a party to this agreement) to whom the Parties render Services;

“Effective Date” is the date of this Agreement;

“Force Majeure” means any cause preventing a Party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Party so prevented or delayed including, without limitation, industrial disputes, fire, explosion, flood, natural disaster, riot, war, civil commotion, terrorism, malicious damage and compliance with any law or governmental order, rule, regulation or direction;#p#分頁標題#e#

“Group” means in relation to an undertaking, that undertaking and any undertaking of which it is a Subsidiary (its holding undertaking) and any other Subsidiaries of its holding undertaking.

“Insolvency Event” means in relation to a Party (1) the entering into of a scheme of arrangement (voluntary or statutory) with its creditors or a majority of its creditors by value, (2) the passing of a resolution or the granting of a petition for the winding up of the Party, (3) the filing for the opening of insolvency proceedings, and (4) the appointment of a receiver or administrator or other officer in relation to the whole or substantially whole of the property and undertaking of the Party, but specifically excluding the passing of a resolution for a members’ voluntary winding up of the Party for the purpose of an amalgamation, re-organisation, or reconstruction provided that the successor or successors to the business and assets of the Party enters into a Deed of Adherence in agreed form so that such successor or successors assumes the rights and obligations of the Party under this Agreement (or in any of these cases the equivalent under any jurisdiction);

“Know-How” means all technical knowledge, technical experience and skills, secret processes or techniques and other information owned by or at the free disposal of a Party relating to or necessary for the use in connection with the Services, and includes the whole body of such knowledge, experience, skills and information and also any one or more parts of the same;

“Opportunity” means any bid, tender, contract opportunity, or project the Parties agree in writing to work on together;

“ABC Nominated Company” means any member of the ABC Group;

“Party” or “Parties” means the either party to or the parties to this Agreement as the case may be;

“ABC” means ABC Limited or any ABC Nominated Company;

“Services” means the services set out in the Capability Map attached hereto as Schedule Two;

“Subsidiary” means in relation to an undertaking (the holding undertaking), any other undertaking in which the holding undertaking (or persons acting on its or their behalf) directly or indirectly holds or controls either:
(a) a majority of the voting rights exerciseable at general meetings of that undertaking; or
(b) the right to appoint or remove directors having a majority of the voting rights exerciseable at meetings of the board of directors of that undertaking,
and any undertaking which is a Subsidiary of another undertaking shall also be a Subsidiary of that undertaking’s holding undertaking.

“Target Customers” mean the customers targeted by the Parties as part of the Business Plan or in any Opportunity;

“Territory” means [CCCC]

“[XXX] Nominated Company” means any member of the [XXX] Group;

“[XXX]” means [XXX] or any [XXX] Nominated Company;#p#分頁標題#e#

2. SCOPE AND MANAGEMENT OF AGREEMENT

2.1 SCOPE

2.1.1 The Parties will co-operate in the marketing, selling and provision of the Services to Target Customers located in the Territory.

2.1.2 This Agreement will be on an exclusive basis in respect only of each Opportunity.

2.1.3 Each Party will provide the other with up to date brochures and technical specifications as required from time to time.

2.2 MANAGEMENT
2.2.1 The management of this Agreement will be carried out by a team made up of two representatives from each of the Parties (“the Management Team”). The Management Team shall have responsibility for the supervision and management of this Agreement and shall be responsible for preparation of the annual Business Plan and budget, monthly reports to the Parties on progress against the Business Plan and budget, development of strategy and promotion of the Parties’ Services, identifying Opportunities and Target Customers. In the first instance the Management Team will recommend to the Parties their views on which should be the Lead Party for any Opportunity and who the members of the Delivery Team for that Opportunity should be and the Parties shall take this view into account, but shall not be bound by it.
2.2.2 The Management Team shall consist of no less than four representatives and shall be made up of an equal number of ABC and [XXX] representatives.
2.2.3 A Party may remove a Management Team member appointed by it and appoint a new member in his place by notice in writing to the other Party.
2.2.4 The Parties intend that meetings of the Management Team are convened and held at least once every four months and that a written agenda for each meeting of the Management Team specifying the matters to be raised at the meeting is sent (together with the notice convening the meeting) not less than seven days before the date of the meeting to all members (or their alternates) entitled to receive notice of the meeting.
2.2.5 No resolution may be passed at a Management Team meeting unless the nature of the business has been specified in the agenda; both members appointed by each Party are present and a majority of members vote in favour including at least one member appointed by each Party.
2.2.6 Each of the Parties shall take all steps available to them to ensure that any meeting of the Management Team has the necessary quorum throughout.
2.2.7 Neither Party will be entitled to enter into contracts on behalf of the other Party in any way without the prior written consent of the other Party.

2.2.8 The employees of each Party will remain employees of that Party and nothing in this Agreement will operate to transfer the employment of any persons employed by either Party.

2.2.9 There will be no transfer of assets or equipment from one Party to another and nothing in this Agreement will operate as such.

2.2.10 This Agreement does not constitute, create, imply or represent any agency, partnership or joint venture between the parties. Each Party is an independent contractor with respect to the performance of their obligations under this Agreement.#p#分頁標題#e#

3. MANAGEMENT OF OPPORTUNITIES

3.1 The Parties will agree on a case by case basis which of them will take the lead in an Opportunity (in each case, the Party responsible for the bid or who takes the lead will be known as “the Lead Party” for the purposes of this Agreement). For each Opportunity, the Parties will nominate a Delivery Team made up of representatives from each Party to work on an open book basis as regards costs for the purposes of agreeing the cost structure of the Opportunity in question. The Delivery Team will produce for each Opportunity a fully costed budget and workscope for approval by the Management Team and the Parties themselves. The budget and workscope will set out clearly the cost and pricing structure to be followed including the margin for each Party on its scope of work, the contract structure and the workscope to be assigned to each Party. The Lead Party shall be responsible for the overall control of the Development Team and shall be entitled to add a management charge for any additional management duties on a basis agreed between the Parties.

3.2 The Parties shall agree on a case by case basis, the arrangements for funding and lodging any Bid Bonds required as part of any Opportunity.

3.3 Each Party shall be responsible for its own costs for the Work involved in the preparation of each Opportunity.

3.5 Each Party reserves the right to refuse to participate in an Opportunity where it has either not received reasonable notice of the Opportunity, where its comments on the work have not been incorporated into the workscope or budget or where in good faith and for sound commercial reasons it cannot agree the terms of a subcontract. If a Party exercise this right it shall do so in writing and thereafter the other Party shall be free to pursue the Opportunity in question on its own or in any way it sees fit. [This section requires some thought as to the practical effects]

4. REMUNERATION

4.1 The Parties agree that no fees, commissions or royalties or other remuneration will be payable by one Party to the other Party in relation to the winning of contracts and/or performing of services under this Agreement.

5. DEADLOCK

5.1 A deadlock will occur if a resolution is proposed at a duly convened meeting of the Management Team and either:
5.1.1 a quorum is not achieved at the meeting other than through the non-attendance of the proposer of the resolution and a quorum is also not achieved at any adjourned meeting; or
5.1.2 a member of the Management Team (other than the representative of the proposing party) votes against the resolution or abstains from voting.
5.2 Any Party may within 28 days of the event that has given rise to the deadlock serve notice (a “Deadlock Notice”) on the other Party stating that in its opinion a deadlock has occurred and identifying the matter over which the Parties are deadlocked.
5.3 The Parties undertake that following service of the Deadlock Notice they shall forthwith refer the matter which has given rise to the deadlock to a panel of an equal number of senior members of the boards of directors of ABC and [XXX] (“the Panel”) and shall each use all reasonable endeavours in good faith to resolve the dispute.#p#分頁標題#e#
5.4 In respect of the Delivery Team, a deadlock will occur when the representatives of either Party in the Delivery Team advise the Management Team in writing of any disagreement arising out of an Opportunity.
5.5 Where after referral
6. BUSINESS PLANS

6.1 The Management Team shall prepare the first Business Plan within 90 days of the Effective Date and thereafter shall prepare a Business Plan annually within 45 days of the end of each year of this Agreement and shall provide a copy of this to the Parties for approval and adoption at the first available Management Team meeting. The Business Plan shall include the following:
6.1.1 an estimate of the working capital requirements contained in a cashflow statement;
6.1.2 a projected profit and loss account;
6.1.3 an operating budget (including estimated capital expenditure requirements) and balance sheet forecast;
6.1.4 a report giving business objectives for the year;
6.1.5 an analysis of the results of the Business Plan for the previous year, identifying variances in sales revenues, costs and other material items; and
6.1.6 potential Opportunities, Target Customers, marketing strategy and an activity plan for the year in question.
6.2 The Business Plan will be reviewed and updated every four months by both Parties.

7. CONFIDENTIALITY

7.1 The Confidentiality Agreement signed by the Parties and dated [ ] and [ ] shall continue to have affect for the duration of this Agreement and for a period of five years after its termination..

8. DURATION AND TERMINATION

8.1 This Agreement will be effective as from the Effective Date and will continue for an initial period of 12 calendar months expiring at 23.59 hours on the first anniversary of the Effective Date. The Agreement will continue in full force and effect thereafter unless and until terminated by either Party serving at any time not less than 3 months’ notice in writing.

8.2 Either Party will have the right to terminate this Agreement with immediate effect in the event of the other Party being subject to an Insolvency Event.

8.3 Either Party will have the right to terminate this Agreement with immediate effect in the event of the other Party being in material breach of this Agreement and failing to remedy such breach within 30 days of being called upon by the other Party in writing to do so.

8.4 On termination, the parties will endeavour to ensure that:
8.4.1 all existing contracts are performed so far as resources permit;
8.4.2 no new contractual obligations shall be entered into by the parties which would be governed by this Agreement.

9. ASSIGNATION

9.1 The Parties have contracted with each other on the basis of the respective skills, knowledge and specialisms of each and accordingly subject to Clauses 9.2 and 9.3 below, this Agreement is not assignable in whole or in part by either Party.

9.2 Either Party may assign this Agreement at any time to any of its own Nominated Companies with the prior written consent of the other Party.#p#分頁標題#e#

10. DISPUTE RESOLUTION

10.1 The Parties agree that they will exercise their rights and perform their obligations under this Agreement acting in good faith and in the spirit of co-operation and with the objective of avoiding disputes arising among them. In the event that a dispute arising out of this Agreement between the Parties they will take all reasonable steps to negotiate a settlement of the dispute within 28 days of the dispute arising.

10.2 In the event that the dispute is not resolved within 30 days of the dispute arising (or such longer period as the Parties may agree), the dispute shall be finally resolved by arbitration in accordance with Thesis is provided by UK thesis basethe Rules of the Chartered Institute of Arbitrators in Scotland on application by either of the Parties. The Parties agree that the arbiter will have full powers to make any award or decision he determines to be appropriate (including an award of damages and an award of expenses) and the decision of the arbiter will be binding and will not be capable of appeal to the Courts. Arbitration will take place in Edinburgh. The language of the Arbitration will be English.

10.3 Nothing in this Clause 10 will prevent any Party applying for any interdict or other preliminary or interim order for the purpose of protecting its commercial interests where that Party, acting reasonably, has justification to seek such preliminary or interim protection.

11. WARRANTIES

11.1 Each Party warrants that it has valid, necessary and appropriate consents, licences and authorisations to carry out the work comprised in this Agreement.

11.2 Each Party warrants that it is not aware of any agency or other agreement which would prevent it from entering into this Agreement.

11.3 Both Parties warrant that they have full power, capacity and authority to enter into this Agreement.

12. MISCELLANEOUS PROVISIONS

12.1 Each Party will bear its own expenses incurred in connection with the drafting, preparation, execution and carrying into effect of this Agreement.

12.2 This Agreement constitutes the entire agreement and understanding of the Parties and supersedes any previous agreements between the Parties relating to the subject matter of this Agreement.

12.3 No failure on the part of a Party to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.#p#分頁標題#e#

12.4 Any consent given by a Party under any provision of this Agreement will be effective only in the instance and for the purpose for which it is given and the giving of any such consent in respect of any act or thing will not operate as a waiver of any requirement on the Party to whom the consent is given not to do that or any other act or thing at any time in the future without such consent.

12.5 If a Party is prevented or delayed in the performance of any of its obligations as a result of Force Majeur, that Party will immediately serve notice in writing to the other Party specifying the nature and extent of the Force Majeure and after the service of that notice it will have no liability in respect of such of its obligations as are prevented or delayed by the Force Majeure event during the continuation of that event, and for such time after it ceases as is necessary for that Party, using all reasonable endeavours, to recommence its affected operations in order for it to perform its obligations.

12.6 If any provision of this Agreement is to any extent invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby and each of the provisions of this Agreement will be valid, legal and enforceable to the fullest extent permitted by law or replaced by such valid, legal and enforceable provision which comes closest to the Parties’ original intent. The same applies in the event of omissions in this Agreement.

12.7 Any provision of this Agreement which is expressed or intended to have effect on, or to continue in force after, the termination of this Agreement will have such effect, or, as the case may be, continue in force after such termination.

12.8 Each Party will carry out their obligations in terms of this Agreement in such a way as to procure so far as possible that the provisions of this Agreement are duly and promptly observed and given full force and effect according to its spirit and intention.

13. NOTICES

Any notice or other communication to be given by one Party to another under, or in connection with the matters contemplated by, this Agreement will be communicated to that other Party at the address Thesis is provided by UK thesis baserecorded as follows (or at such other address or addresses as may from time to time be specified in writing by that Party to the other:

ABC Limited
FAO:
Tel: +44 (0) 1224
Fax: +44 (0) 1224

[XXX]
FAO:
Tel:
Fax:

Notices sent under this Clause will be effective on delivery if sent by a recognised international courier or by registered post.#p#分頁標題#e#

14. LAW

This Agreement will be governed by Scots Law.

In Witness Whereof this document has been executed as follows:

SUBSCRIBED for and on behalf of
ABC Limited
at …..................................... …...........................................
on …....................................
by …....................................
a Director of ABC Limited

……………………………..

……………………………..

…………………………….. Witness

SUBSCRIBED for and behalf of
[XXX]
at ….................................. …...........................................
on ….................................
by ….................................
a Director of [XXX]

……………………………..

……………………………..

…………………………….. Witness

SCHEDULE ONE

BUSINESS PLAN

SCHEDULE TWO

CAPABILITY MAP