Attached files
| file | filename |
|---|---|
| S-1 - WESTPOINT INTERNATIONAL INC | v210431_s1.htm |
| EX-3.1 - WESTPOINT INTERNATIONAL INC | v210431_ex3-1.htm |
| EX-3.2 - WESTPOINT INTERNATIONAL INC | v210431_ex3-2.htm |
| EX-3.3 - WESTPOINT INTERNATIONAL INC | v210431_ex3-3.htm |
| EX-10.9 - WESTPOINT INTERNATIONAL INC | v210431_ex10-9.htm |
| EX-21.1 - WESTPOINT INTERNATIONAL INC | v210431_ex21-1.htm |
| EX-10.6 - WESTPOINT INTERNATIONAL INC | v210431_ex10-6.htm |
| EX-10.3 - WESTPOINT INTERNATIONAL INC | v210431_ex10-3.htm |
| EX-23.1 - WESTPOINT INTERNATIONAL INC | v210431_ex23-1.htm |
| EX-10.7 - WESTPOINT INTERNATIONAL INC | v210431_ex10-7.htm |
JOINT
VENTURE AGREEMENT
Indus
Home Limited
Dated
as of March 19, 2006
TABLE
OF CONTENTS
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Page Number
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1.
|
The
Project
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2
|
|
|
1.1
|
Purpose
|
2
|
|
|
2.
|
Related
Agreements; Timing
|
2
|
|
|
2.1
|
Related
Agreements
|
2
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|
|
2.2.
|
Construction
and Interpretation
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2
|
|
|
2.3.
|
Timing
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2
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|
|
3.
|
Company
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3
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|
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3.1
|
Formation
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3
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3.2
|
Ownership
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3
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|
3.3
|
Management
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3
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|
|
3.4
|
Capitalization
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6
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|
|
3.5
|
Stock
Transfers
|
9
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|
|
3.6
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Operations
and Accounting Matters
|
12
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|
|
3.7
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Compliance
with Laws Regarding Payments
|
14
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|
|
4.
|
Sale
of the Facility
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14
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|
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4.1
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General
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14
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|
|
4.2
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Purchase
Price
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14
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|
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5.
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Sale
of WPH Equipment
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15
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|
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5.1
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General
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15
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|
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5.2
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Purchase
Price
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15
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|
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5.3
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Alternate
Form of Transfer
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15
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|
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6.
|
WPH
Supply Agreement
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15
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|
|
7.
|
IDM
Yarn Supply Agreement
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15
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|
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8.
|
Restrictions
on the Activities of WPP, WPH and IDM
|
15
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8.1
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Activities
of IDM
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15
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|
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8.2
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Activities
of WPP and WPH
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16
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|
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9.
|
Term
and Termination
|
17
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9.1
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Term
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17
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9.2
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End
of Project Term
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17
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9.3
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Termination
upon Default
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20
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9.4
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Remedies
upon Default
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21
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9.5
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Non-Defaulting
Party Right to Cure
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22
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9.6
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Board
Deadlock
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22
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9.7
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Winding
Up
|
23
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|
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9.8
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Exclusion
of Consequential Damages
|
23
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|
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9.9
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Termination
of WPH Obligations
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23
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10.
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Representations
and Warranties
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23
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|
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10.1
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Representations
and warranties of WPH and WPP
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23
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|
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10.2
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Representations
and warranties of IDM
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24
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10.3
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No
Other Representations or Warranties
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25
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11.
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Guarantees
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26
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12.
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Taxes
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26
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12.1
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General
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26
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12.2
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Disclaimer
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26
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13.
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Confidentiality
and Intellectual Property
|
26
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|
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13.1
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Confidential
Information
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26
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|
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13.2
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Nondisclosure
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27
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|
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13.3
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Special
Provisions as to Certain Information
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27
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13.4
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Exceptions
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27
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13.5
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Return
of Confidential Information
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27
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|
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13.6
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Confidentiality
of Agreement
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28
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|
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13.7
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Intellectual
Property
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28
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13.8
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Remedies
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28
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|
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14.
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Dispute
Resolution
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28
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|
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14.1
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Applicability
of Arbitration Provisions; Selection of Arbitrators
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28
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|
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14.2
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Discovery;
Hearing
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29
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|
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14.3
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Decision
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30
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|
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14.4
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Expenses
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30
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15.
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Miscellaneous
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30
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15.1
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Binding
Effect
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30
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15.2
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Assignment
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30
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15.3
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Notices
And Other Communications
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30
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15.4
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Severability
|
31
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15.5
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No
Waiver
|
31
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15.6
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Relationship
between the Parties
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31
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15.7
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Expenses
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31
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15.8
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No
Third Party Beneficiaries
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31
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15.9
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Governing
Law
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31
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15.10
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Certain
Rules of Construction
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32
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15.11
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Counterparts
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32
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15.12
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Obligation
to Act
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32
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15.13
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Amendment
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32
|
|
ii
JOINT
VENTURE AGREEMENT
Indus
Home Limited
THIS
JOINT VENTURE AGREEMENT (this “Agreement”), dated as of March
19, 2006, by and between the following parties:
WESTPOINT
HOME, INC., a Delaware corporation (“WPH”),
WESTPOINT
PAKISTAN, INC., a Delaware corporation (“WPP”), and
INDUS
DYEING & MANUFACTURING CO., LIMITED, a public listed company organized under
the Companies Ordinance 1984 of Pakistan (“IDM”).
WITNESSETH
WHEREAS:
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|
1.
|
IDM
is a member of the Indus group of companies, consisting of IDM and Sunrays
Textile Mills Limited (the “Indus
Group”).
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|
|
2.
|
Yusuf
Textile Mills Limited, another member of the Indus Group (“YTM”), built and
commenced operations at a manufacturing facility (together with the
equipment located therein, the “Facility”) near Lahore,
Pakistan located at 2.5 km Manga Raiwind Road, Manga Mandi, Lahore. The
Facility is intended to be used in the production of greige terry cloth
and other terry products.
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|
|
3.
|
YTM
and IDM have taken steps to merge YTM with and into IDM pursuant to and in
accordance with the order dated November 29, 2005, of the High Court of
Sindh at Karachi, passed in Judicial Miscellaneous Application No. 8 of
2005, pursuant to which the properties, assets, liabilities, powers,
licenses, contracts and obligations of YTM vested in
IDM.
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|
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4.
|
WPH
manufactures and sells, among other things, terry towels and related
textile products, has expertise in the terry manufacturing process and is
seeking a low-cost source of supply for certain terry
products.
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|
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5.
|
WPP
is a subsidiary of WPH.
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|
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6.
|
WPP
and IDM wish to form a joint venture company to be known as Indus Home
Limited that will be organized as a public unlisted company under the
Companies Ordinance 1984 of Pakistan (the “Company”). Company
will be jointly owned by WPP and IDM in accordance with the provisions of
this Agreement and will own the Facility and manufacture greige and
finished terry cloth products (“Terry Products”) and
other textile products in Pakistan for sale to WPH and others in
accordance with the terms of this Agreement and the Related Agreements (as
defined below).
|
NOW
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements contained in this Agreement, and for other good and valuable
consideration, the receipt, mutuality and adequacy of which is hereby
acknowledged, the parties agree as follows.
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1.
|
The
Project.
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|
|
1.1
|
Purpose. The
purpose of this Agreement is to set out the basis on which the parties
will
|
|
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(a)
|
form
Company to own and operate the Facility and manufacture Terry Products and
such other textile products as the parties may agree from time to
time;
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(b)
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at
such time as WPP and IDM may mutually agree, expand such activities
through the construction of additional weaving facilities and the
construction and installation of finishing, sewing, yarn production,
fabrication, distribution and related manufacturing facilities (the “Additional Facilities”);
and
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|
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(c)
|
sell
its Terry Products to WPH and, in certain circumstances, to third
parties
|
(all such
activities being referred to collectively as the “Project”).
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2.
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Related Agreements;
Timing.
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|
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2.1
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Related
Agreements. The Project will be implemented and operated
in accordance with the terms of this Agreement and the other agreements
and documents referred to in this Section 2.1 (collectively, the “Related
Agreements”). This Agreement and the Related Agreements
are sometimes hereinafter collectively referred to as the “Project
Documents”.
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|
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(a)
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Company Organizational
Documents. The Charter Documents, as described in Section
3.
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(b)
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Share Issuance
Documents. Any share issuance documents of Company
required by Pakistani law or by agreement of the
parties.
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(c)
|
Facility Purchase
Agreement. The Facility Purchase Agreement, as described
in Section 4.
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(d)
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WPH Equipment Purchase
Agreement. The WPH Equipment Purchase Agreement, as
described in Section 5.
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(e)
|
WPH Supply
Agreement. The WPH Supply Agreement, as described in
Section 6.
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(f)
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Yarn Supply
Agreement. The Yarn Supply Agreement, as described in
Section 7.
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2.2
|
Construction and
Interpretation. The parties acknowledge that the Related
Agreements are intended to be consistent with the intent and purpose of
this Agreement but agree that to the extent that the provisions of this
Agreement conflict with the provisions of any Related Agreement, such
Related Agreement will control the relationship of the parties under that
Related Agreement.
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2.3
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Timing.
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|
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(a)
|
IDM Shareholder
Approval. The parties acknowledge that the execution,
delivery and performance of this Agreement remains subject to the approval
of the Board of Directors and shareholders of IDM. Promptly
after the execution and delivery of this Agreement, IDM will undertake to
obtain the approval of its Board of Directors and will use its best
efforts to do so by March 31, 2006, and to obtain the approval of its
shareholders and will use its best efforts to do so by May 31,
2006. If either such approval is not obtained by the specified
date WPP will have the right, exercisable in its sole discretion, to
terminate this Agreement, which right shall be exercised by giving written
notice of termination to IDM no later than April 15, 2006, in the case of
Board of Directors approval, or June 15, 2006, in the case of shareholder
approval.
|
2
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|
(b)
|
Formation. The
Charter Documents shall be filed with the companies registration office at
Lahore, Pakistan within ninety (90) days following the execution of this
Agreement. The initial capital contributions by WPP and IDM to
Company shall be made as soon as reasonably practicable thereafter, as
more fully described in Section 3.4(b) and (c). Promptly
following the execution of this Agreement the parties will complete the
preparation of the Related Agreements (it being understood and agreed that
the completion, execution, delivery and filing of such documents in a form
and on terms satisfactory to each such party is a condition to the
obligation of each party to engage in the
Closing).
|
|
|
(c)
|
Pre-Closing Activity
of Company. During the period between the filing of the
Charter Documents and the Closing (as defined below), Company will not (i)
conduct any business operations, (ii) enter into any material contract or
agreement, or (iii) acquire any assets or incur any liabilities, in any
case except as may have been expressly approved by the Board (as defined
below). If this Agreement is terminated prior to the Closing,
Company will be dissolved.
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|
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(d)
|
Termination Prior to
the Closing. If this Agreement is terminated pursuant to
Section 2.3(a) or the Closing shall not have occurred on or prior to July
31, 2006, this Agreement and all obligations of the parties hereunder,
except the obligations under this Section 2.3(d) and Sections 13, 14 and
15.7, shall terminate, unless extended by mutual written agreement of the
parties; provided, however, that
such termination shall not constitute a waiver of any rights any party may
have by reason of a breach of this
Agreement.
|
|
3.
|
Company.
|
|
|
3.1
|
Formation. Company
shall be formed as a public unlisted company by the filing of a Memorandum
of Association and Articles of Association (collectively, the “Charter Documents”),
each in a form mutually agreed by IDM and WPP, with the companies
registration office at Lahore, Pakistan. The initial
subscribers for Company shall be the persons designated as the initial
Directors of Company as set forth in Section 3.3(b) below. The
registered office of Company shall be located in Lahore, Pakistan unless
otherwise agreed in writing by the
parties.
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|
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3.2
|
Ownership. In
accordance with the terms of Section 3.4, each of WPP and IDM shall own
50% of the outstanding common stock of Company (for each of IDM and WPP,
its “Ownership
Percentage”), taking into account any shares held by such party’s
director designees. No shares of stock in Company shall be
issued to any party other than WPP or IDM, or the directors designated by
them, without the prior written approval of each of WPP and
IDM.
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3.3
|
Management.
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(a)
|
Board of
Directors. Company will be managed by a board of
directors (the “Board”) and by officers
appointed by the Board which will include a Managing Director (the “Managing Director”)
appointed in accordance with Section 3.3(d) and a Chief Financial Officer
(the “CFO”)
appointed in accordance with Section
3.3(e).
|
|
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(b)
|
Board
Membership. The Board will consist of six individuals,
of whom three members will be appointed by WPP (the “WPP Directors”) and
three members will be appointed by IDM (the “IDM Directors”; the WPP
Directors and the IDM Directors are referred to collectively as the “Directors”). The
initial WPP Directors shall be Mr. Jeffrey R. Engel, Mr. Thomas M. Lane
and Mr. John W. Hurston. The initial IDM Directors shall be Mr.
Shahzad Ahmed, Mr. Kashaf Riaz and Mr. Irfan Ahmed. The party
entitled to appoint a director shall have the power to remove such
director, and any vacant directorship on the Board shall be filled by a
person nominated by the party entitled to appoint such
director. Each party agrees to vote its shares, and to cause
any Director nominated by it to vote, in favor of the appointment of any
such replacement Director.
|
3
|
|
(c)
|
Chairman of the
Board. WPP shall have the right to designate one of the
WPP Directors to serve as the Chairman of the Board for Company (the
“Chairman”) and
his appointment shall require the approval of the majority of
Board. The Chairman shall have the responsibility for convening
and presiding over meetings of the Board. The Chairman shall
also report to the shareholders of Company at all general
meetings. The Board shall have the right to remove the Chairman
at any time. The Chairman may delegate such responsibilities to
the Managing Director or any other Director of Company. The
Chairman shall serve in such capacity until WPP designates another WPP
Director to act as the Chairman of the Board. The initial
Chairman shall be Mr. Jeffrey R.
Engel.
|
|
|
(d)
|
Managing
Director. IDM shall have the right to designate one of
the IDM directors to serve as the Managing Director and his appointment
shall require the approval of the majority of the Board. The
Managing Director shall be the chief executive officer of Company, shall
be responsible for the day-to-day management and operation of Company and
its business, and shall be subject to the supervision and control of the
Board. The Managing Director shall report to the
Board. The Board shall have the right to remove the Managing
Director at any time. Any proposed replacement for the position
of the Managing Director will be selected and nominated for such position
by IDM but his appointment to the position of the Managing Director will
require the approval of a majority of the Board. In the event
the Board does not approve an individual nominated by IDM, IDM shall
select another nominee for the consideration of the Board. The
Managing Director shall be appointed from among the three IDM
Directors. If IDM nominates a person to be Managing Director
who is not already one of the IDM Directors, then IDM must also indicate
which of the existing IDM Directors such nominee would replace, if such
nominee is approved by the Board. The initial Managing Director
shall be Irfan Ahmed, who shall serve in that position for an initial term
of three years, renewable at the election of the Board. Subject
to the discretion of the Board to impose limits (whether in the form of
monetary limits or with respect to types of actions) on the authority of
the Managing Director, the Managing Director shall have the following
powers and authorities which, for the avoidance of doubt, reflect the
initial powers and authorities agreed upon by the parties and are subject
to modification by action of the Board of
Company:
|
|
|
(i)
|
to
make all decisions with respect to the day to day management of the
operations of Company subject to the specific limitations on particular
exercise of authority set forth
below;
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|
|
(ii)
|
to
provide for the management of the affairs of Company, either in different
parts of Pakistan or elsewhere, in such manner as may be
necessary;
|
|
|
(iii)
|
to
approve the purchase of raw materials and consumable spares from any
source, foreign or local, which are reasonably expected to be required by
Company in the upcoming six (6) months, based on forecasts provided to
Company under any Related
Agreements;
|
|
|
(iv)
|
to
approve capital expenditures not exceeding US$500,000 for each financial
year;
|
|
|
(v)
|
to
approve disposal of any physical assets, other than any land or building,
no longer required or economic to use, up to a book value of US$250,000,
provided the loss on disposal of such asset does not exceed ten percent
(10%) of its book value;
|
|
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(vi)
|
to
appoint or dismiss all employees of Company other than the
CFO;
|
4
|
|
(vii)
|
to
enter into, approve and sign contracts and to rescind and vary all such
contracts and execute and do all such acts, deeds and things in the name
and on behalf of Company as may be necessary for the promotion of the
objectives of Company, to the extent consistent with delegations of
authority proposed by the Managing Director and approved by the Board from
time to time;
|
|
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(viii)
|
to
supervise and coordinate the activities and responsibilities of the CFO;
and
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|
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(ix)
|
to
coordinate and liaise with governmental departments and/or other
authorities in Pakistan, where necessary, to further the business
objectives of Company.
|
In
addition, the Managing Director’s responsibilities will generally include the
following:
|
|
(i)
|
preparing
and presenting to the Board an annual budget and operations plan for each
fiscal year,
|
|
|
(ii)
|
upon
approval of the budget and the operations plan, implementing the plan
within the constraints of the
budget,
|
|
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(iii)
|
supervising
and directing the operations of Company, including its performance of any
contracts with IDM, WPP, WPH or their Affiliated Entities, and any third
parties,
|
|
|
(iv)
|
supervising
and directing the employees of Company,
and
|
|
|
(v)
|
reporting
periodically to the Board, both in person and in
writing.
|
The
Managing Director may delegate certain of his responsibilities to the officers
of Company, subject to the approval of the Board.
|
|
(e)
|
Financial
Director/Chief Financial Officer. The CFO shall be the
chief financial officer and controller of Company. The CFO’s
duties will include the following, in addition to any others assigned to
him or her from time to time by the Board or the Managing
Director:
|
|
|
(i)
|
supervising
and controlling the moneys, securities, receipts and disbursements of
Company, including keeping or causing to be kept full and accurate records
of all receipts of Company,
|
|
|
(ii)
|
maintaining
adequate records of all assets, liabilities and transactions of
Company,
|
|
|
(iii)
|
rendering
to the Board, the Managing Director, IDM or WPP, whenever requested, a
statement of the financial condition of Company, and rendering a full
financial report at the annual general meeting of Company, if called upon
to do so, and
|
|
|
(iv)
|
supervising
and coordinating the bank accounts of Company in accordance with the
decisions of the Board, including with respect to the signatories of such
accounts.
|
The CFO
shall report to the Board and may be replaced by the Board. The CFO
will be an individual selected and nominated for such position by WPP and
approved by the Board. In the event that the Board does not approve
an individual nominated by WPP, WPP shall select another nominee for the
consideration of the Board.
5
|
|
(f)
|
Voting Rights of
Directors. Each director will have one vote on all
matters requiring the approval or action of the Board, provided that a
director may also appoint an alternate director to the extent permitted by
the laws of Pakistan to act in his place if he is unable to attend a
meeting, in which case such alternate director will exercise the vote held
by the director who appointed him (but will not have any additional voting
rights).
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|
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(g)
|
Majority
Vote. Any action or consent of the Board will require
the approval of a majority of the Board, which majority must include the
vote of at least two WPP Directors and two IDM
Directors.
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|
|
(h)
|
Quorum. A
quorum for any meeting of the Board will consist of a majority of the
Board (including, where applicable, their alternates), provided that at
least two WPP Directors (or their alternates) and two IDM Directors (or
their alternates) must be present.
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|
|
(i)
|
Shareholders
Meetings. Subject to the requirements of the laws of
Pakistan, all actions taken at shareholders meetings of Company shall
require the approval of a majority of the shares eligible to vote on any
such action. Quorum for any meeting of the shareholders of
Company will consist of at least sixty percent (60%) of the total shares
of Company then outstanding.
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|
|
(j)
|
Additional
Provisions. The Charter Documents of Company will
contain such additional provisions with respect to the management of
Company and related matters that are consistent with this Agreement as IDM
and WPP may agree and shall, subject to the requirements of Section 3.3(h)
above, authorize the conduct of meetings by the Board in person, by
teleconference or videoconference and, to the full extent permitted by the
laws of Pakistan but always subject to Section 3.3(g), by a
resolution in writing.
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|
|
(k)
|
Charter
Documents. The parties agree to reflect the provisions
set forth in this Section 3.3 in the Charter Documents of Company and to
ensure that the provisions of this Agreement and Company’s Charter
Documents at all times remain consistent. If the parties take
any action to alter or amend any term or other provision in this Agreement
or any of the Charter Documents, then the parties shall, or IDM
and WPP shall cause Company to, take all necessary steps to ensure that
any corresponding or identical provision in any other such document is
similarly modified.
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|
|
3.4
|
Capitalization. This
Section 3.4 sets forth the terms on which Company shall be capitalized,
and neither IDM nor WPP shall be permitted or required to make any
contributions to Company except in accordance with the following
provisions.
|
|
|
(a)
|
Authorized
Capital. The Charter Documents of Company shall
establish an authorized share capital of Company of Rs. 10,000,000,
divided into 1,000,000 shares of Rs. 10
each.
|
|
|
(b)
|
Initial Authorized
Capital and Preliminary Subscriptions. The initial
authorized capital of Company shall be Rs. 5,000,000, divided into 500,000
shares of Rs. 10 each. IDM shall pay the registration fee
required in connection with the incorporation of the Company with such
authorized capital, and Company shall reimburse IDM for such amount
following Company’s commencement of business. The subscribers
of Company, who will consist of the IDM Directors and the WPP Directors
(the “Individual
Subscribers”), will each be issued one (1) share of the stock of
Company. In addition, immediately following the filing of
Company’s Charter Documents, the Board shall make a rights issue for
499,994 shares of Rs. 10 each to the Individual
Subscribers. Each of IDM and WPP shall cause the directors
nominated by them to decline the rights offer, and following Company’s
receipt of notice that the Individual Subscribers have declined the rights
offer, Company shall issue an offer to each of WPP and IDM to purchase
249,997 shares of Rs. 10 each. WPP and IDM shall each purchase such
249,997 shares of Rs. 10 from Company (for IDM, the “Preliminary IDM Shares”
and for WPP, the “Preliminary WPP
Shares”).
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6
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(c)
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IDM and WPP
Preliminary Equity Contributions. In full consideration
for the issuance of the Preliminary IDM Shares (and the IDM Director
Shares), IDM shall pay to Company a subscription price equal to Rs.
2,500,000 (the “Preliminary IDM Subscription
Price”), payable in Pakistan rupees, and in full consideration for
the issuance of the Preliminary WPP Shares (and the WPP
Director Shares), WPP shall pay to Company a subscription price (the
“Preliminary WPP
Subscription Price”) in U. S. Dollars (“US$”) equal to the
Preliminary IDM Subscription Price. For purposes of converting
the value of WPP’s contribution in U.S. Dollars into Pakistan rupees (or
any other conversions from U.S. Dollars into Pakistan rupees or vice
versa), such conversion shall be made at the rate of exchange prevailing
on the business day that is two (2) business days prior to the date on
which shares of Company are allotted by the Board. For this
purpose “rate of exchange” means the relevant rate of exchange on the
relevant date obtainable from banks in the Pakistan interbank market as
determined by WPP or its designee based on quotes received from, or
published by, such banks.
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(d)
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Commencement of
Business. Upon Company’s receipt of the Preliminary IDM
Subscription Price and the Preliminary WPP Subscription Price, the Board
shall allot shares to the WPP Directors, the IDM Directors, WPP and IDM as
set forth in paragraphs (b) and (c) above. Following the
allotment of the shares by Company’s Board, Company will apply for a
certificate of commencement of doing business (a “Certificate of
Commencement”) from the appropriate governmental
authority.
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(e)
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Full
Capitalization. As promptly as practicable following the
allotment of the shares described in paragraph (d) above,
Company shall seek the approval of the shareholders of Company
to the increase of Company’s authorized share capital to Rs.
1,500,000,000. WPP and IDM (acting in their respective capacity as
shareholders of Company) shall vote to approve such increase and shall
cause the directors nominated by them to approve such
increase. Following approval of such increase in authorized
share capital, the Board shall make a rights issue for 149,500,000 shares
of Rs. 10 to the shareholders of Company. Each of
IDM and WPP shall cause the directors nominated by them to decline such
rights offer, and each of WPP and IDM shall purchase an additional
74,750,000 shares of Rs. 10 each from Company (for IDM, the “Additional IDM Shares”
and for WPP, the “Additional WPP
Shares”). (The Preliminary IDM Shares and the Additional
IDM Shares are referred to collectively as the “IDM Shares” and the
Preliminary WPP Shares and the Additional WPP Shares are collectively
referred to as the “WPP
Shares”).
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(f)
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IDM and WPP Additional
Equity Contributions. In full consideration for the
issuance of the Additional IDM Shares, IDM shall pay to Company a
subscription price equal to Rs. 747,500,000 (the “Additional IDM Subscription
Price”), payable in Pakistan rupees, and in full consideration for
the issuance of the Additional WPP Shares, WPP shall pay to Company a
subscription price (the “Additional WPP Subscription
Price”) in US$ equal to the Additional IDM Subscription Price
(following the currency conversion specified in paragraph (c)
above).
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(g)
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Additional
Capitalization and Execution of Related Agreements. Upon
Company’s receipt of the Additional IDM Subscription Price and the
Additional WPP Subscription Price, the Board shall allot the Additional
IDM Shares and the Additional WPP Shares to IDM and WPP, respectively, as
set forth in paragraphs (e) and (f) above; provided, that the parties
intend that payment of the Additional WPP Subscription Price
and the Additional IDM Subscription Price shall be made simultaneously
with, and is conditional upon, the initial borrowing under Company’s Loan
Agreement (as defined below) and the consummation of the transactions
contemplated in the Related Agreements, which Related Agreements shall be
satisfactory to the parties (the “Closing”).
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7
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(h)
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Capitalization With
Debt. During the period between the issuance of the Certificate of
Commencement and the Closing, IDM and WPP shall cause Company to enter
into a loan agreement with one or more banks located in Pakistan or other
international banks, pursuant to which Company will obtain a loan facility
of not less than US$36,000,000 (the “Loan
Agreement”). The parties intend that any such debt will
have a seven (7) year term, or such other term as the parties agree in
writing, and will be secured by Company’s fixed assets. The
closing of the Loan Agreement and the initial borrowing by Company
thereunder shall occur simultaneously with the Closing, as detailed in
paragraph (g) above.
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(i)
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Subsequent
Capitalization. If the parties agree that the Facility
should be expanded, or that Additional Facilities or equipment
should be constructed or purchased, they will consult with each other for
the purpose of agreeing on the amount of additional capital needed and the
appropriate portions that should be represented by debt and
equity.
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(j)
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Subsequent
Capitalization With Equity. Subject to the provisions of
paragraph (i) above, no additional equity contributions will be made to
Company, either voluntarily or as a result of a capital call, without the
consent of both WPP and IDM. Any additional equity
contributions by either WPP or IDM shall be in equal amounts, consistent
with the provisions of paragraphs (b) and (e)
above.
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(k)
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Subsequent
Capitalization With Debt. Subject to the provisions of
paragraph (i) above, neither WPP nor IDM, nor any of their Affiliated
Entities (as defined below), will be required or permitted to make any
loans or advances to Company except as
follows:
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(i)
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loans
and advances expressly approved by both IDM and WPP,
and
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(ii)
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outstanding
amounts owed by Company to IDM or WPP or their respective Affiliated
Entities (as defined below) in accordance with the terms of any agreement
approved by the Board and under which Company receives goods or services
in the ordinary course of business.
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(l)
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Additional
Shareholders. Except as expressly provided in Section
3.4(d) and 3.4(g), the parties agree to cause Company not to issue any
shares of capital stock of Company to WPP or IDM (or any Permitted
Transferee) or, except for Directors’ Shares, to any person other than WPP
or IDM (or any Permitted Transferee (as defined in Section 3.5(c)),
in either case without the prior written approval of both WPP and
IDM. If WPP and IDM (or any Permitted Transferee) consent to
such an issuance, Company must obtain an undertaking, in writing, from the
recipient of such shares by which such recipient agrees to be bound by the
terms and conditions of this Agreement and the Related Agreements as
described in Section 3.5(a).
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8
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(m)
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Affiliated
Entity. If either WPP or IDM uses any Affiliated Entity
to acquire shares of capital stock of Company, it will provide adequate
assurances to the other party with respect to the obligations of such
Affiliated Entity to subscribe for any such shares or to make capital
contributions or loans to Company in accordance with the terms of this
Agreement. For purposes of this Agreement, “Affiliated Entity” shall
mean, as to any party, any other person or entity that directly or
indirectly controls, is controlled by, or is under common control
with the specified party, and for the purposes of this
definition means the ownership of twenty-five percent (25%) of the voting
rights attached to shares or other equity interests in an entity;
provided, that ownership interests held by members of the family of Mian
Mohammed Ahmed shall be aggregated for the purpose of calculating the
percentage held.
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(n)
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Other
Provisions. The Charter Documents of Company will
contain such additional provisions with respect to the capitalization of
Company and the distribution of income and related matters that are
consistent with this Agreement as the parties may agree. The
parties will take all necessary action to ensure that any shares of
Company capital stock issued to individual directors will be subject to
appropriate and customary trust documents, restrictive covenants or other
arrangements to ensure the transfer of those shares to WPP or IDM (as the
case may be) or its designee if the holder ceases to be a
director.
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3.5
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Stock
Transfers.
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(a)
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Restrictions on
Transfers. Except as expressly permitted in this
Agreement, neither WPP nor IDM, nor any successor of either (each, a
“Principal Shareholder”) shall,
directly or indirectly, sell, transfer, assign, give, bequeath, devise,
donate, exchange, pledge, hypothecate, encumber, distribute or otherwise
dispose of, either voluntarily or by operation of law (in any case, a
“Transfer”), all
or any part of its or his shares of stock of Company or any rights or
legal or beneficial interests therein, whether now owned or hereafter
acquired, for a period of five (5) years from the Closing; provided that,
subject to the provisions of Sections 9.3 and 9.6, if any Principal
Shareholder (a “Selling Shareholder”) wishes to
Transfer its shares in Company prior to the expiration of the five
(5)-year period, the following procedures will
apply.
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(i)
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The
Selling Shareholder shall notify the other party of its election to sell
its shares and the non-Selling Shareholder shall have the right to
purchase all, but not less than all, of the shares of the Selling
Shareholder (including any Directors’ Shares held by directors appointed
by the Selling Shareholder) at a price equal to (A) the product of 0.80
multiplied by the Ownership Percentage of the Selling Shareholder,
multiplied by (B) the fair market value of the assets of Company (after
taking into account all of Company's liabilities) as determined by an
internationally recognized investment bank or other financial advisor
(acting as an expert and not as an arbitrator) appointed with mutual
agreement of the parties, or if the parties are unable to agree, appointed
by the President of the Institute of Chartered Accountants in England and
Wales (having been requested by either party to make such appointment)
(the “Financial
Expert”). Such expert’s costs shall be payable by the
Selling Shareholder.
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9
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(ii)
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If
the non-Selling Shareholder does not elect to purchase the shares
within one
hundred twenty (120) days of the
receipt of such notice, the Selling Shareholder shall be entitled to sell
its shares in Company, and to assign its rights and transfer its
obligations under this Agreement or the Related Agreements, to a third
party, without being required to follow the procedures set out in
paragraph (d) below; provided, that such sale is (A) at the same or a
higher price than that offered to the non-Selling Shareholder; and (B)
undertaken within ninety (90) days after the termination of the one
hundred twenty (120) day period stipulated above. If the shares
are offered by the Selling Shareholder to a third party at a lower price
than the price offered to the non-Selling Shareholder or are not
transferred to a third party within the stipulated ninety (90) day period,
the non-Selling Shareholder shall again have the option to exercise its
right of first refusal before any such shares held by the Selling
Shareholder may be sold or otherwise
Transferred.
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(iii)
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If
the non-Selling Shareholder gives timely notice of its election to
purchase the Selling Shareholder’s shares (which notice shall be
irrevocable), then the parties will complete such sale and implement the
assignment and assumption of the Selling Shareholder’s rights and
obligations under this Agreement or any Related Agreements, within ninety
(90) days after the date of such
notice.
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Any
transfer in violation of the terms of this Agreement shall be null and void and
without any force or effect. Any shares transferred by a Principal
Shareholder shall remain subject to the same restrictions that were applicable
to such shares while they were held by such Principal
Shareholder. Prior to consummation of any Transfer subject to this
Agreement, the transferring Principal Shareholder shall cause the transferee to
execute a joinder agreement (a “Joinder”), and the Principal
Shareholders shall cause Company to execute the same. Any such
transferee shall agree to be bound by the terms and conditions of this Agreement
in the Joinder.
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(b)
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Director
Shares.
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(i)
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Background. In
order to comply with the requirements of Pakistan law, each individual
appointed as a director of Company (each, a “Director Shareholder”)
shall be sold and issued one share of the capital stock of Company (each,
a “Director Share”
and collectively, the “Director
Shares”). Simultaneously with and as a condition to the
issuance of a Director Share to a Director Shareholder, each Director
Shareholder shall execute and deliver to Company an Acknowledgement and
Declaration of Trust, a Share Transfer Deed and a Waiver of Dividends with
respect to the Director Share (collectively, the “Trust Documents”)
pursuant to which such Director Shareholder acknowledges that the Director
Share issued to him and any dividends or other amounts accruing with
respect to such Director Share are held in trust by him and agrees to
transfer such Director Share upon the direction of the party nominating
him as a director.
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(ii)
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Restrictions on
Transfer. No Director Shareholder shall be entitled to
Transfer all or any part of the Director Shares except as provided in the
Trust Documents executed by him. WPP and IDM shall each cause
the persons designated by them to serve as directors to execute
and deliver the Trust Documents, in the form agreed upon by Company, IDM
and WPP, and shall each take all necessary actions to ensure that at any
time a Director Shareholder ceases to be a director of Company, whether
voluntarily, involuntarily or by the death of such Director Shareholder,
all of the Director Shares held by such Director Shareholder shall be
Transferred to such Director’s replacement on the Board of
Company.
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10
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(c)
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WPP Shares and IDM
Shares. Notwithstanding Section 3.5(a), each of WPP and
IDM may transfer the shares of capital stock of Company owned by it to its
Permitted Transferees (as hereinafter
defined); provided, that no such Transfer shall be effective unless the
proposed transferee (i) accepts in writing all the terms and provisions of
this Agreement through execution of a Joinder and (ii) has paid all
reasonable expenses in connection with becoming a Principal Shareholder of
Company. WPH agrees that so long as WPP (or any subsequent
Permitted Transferee of WPP) is the owner of the WPP Shares, WPP or such
Permitted Transferee will remain an Affiliated Entity of WPH, provided
that this provision will not restrict WPH’s right to transfer all or any
part of the equity interests in WPP or such Permitted Transferee in
connection with a sale of the terry cloth and toweling operations of WPH,
whether to a purchaser of the shares of WPH, a successor by merger, an
acquirer of all or substantially all of such assets or
otherwise.
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As used
in this subsection (c), “Permitted Transferee” means,
with respect to WPP, any Affiliated Entity of WPP, and with respect to IDM,
another member of the Indus Group, provided, that not less than fifty-one
percent (51%) of the outstanding capital in that entity is owned by individuals
who are actively involved in the management and operations of textile businesses
in Pakistan and are members of the family of Mian Mohammed Ahmed. Any
Permitted Transferee shall be treated as if it has assumed the position of the
transferor with respect to the ownership of the capital stock of
Company.
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(d)
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Transfers by Principal
Shareholders. Subject to Section 3.5(a), if any
Selling Shareholder wishes to enter
into a transaction with any third party (other than a transaction with a
Permitted Transferee under subsection (c))
for the sale of all, but in no event less than all, of its shares in
Company (the “Offered
Shares”) to
such third party, the non-Selling Shareholder shall have the right of
first refusal to purchase such shares on the terms and conditions set
forth herein.
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(i)
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Notice of Proposed
Transfer. Upon
receipt of a firm offer from a third party setting forth the price and
other relevant terms of sale, which offer the Selling Shareholder intends
to accept, the Selling Shareholder shall deliver to the non-Selling
Shareholder a written notice (the “Notice”) stating: (i)
such Selling Shareholder’s bona fide intention to sell or otherwise
Transfer the Offered Shares; (ii) the name of each proposed purchaser or
transferee; and (iii) the cash price and other consideration for which
such Selling Shareholder proposes to Transfer the Offered Shares, and such
Selling Shareholder shall offer to the non-Selling Shareholder the Offered
Shares at the same consideration as offered to the proposed
transferee.
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(ii)
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Exercise of Right of
First Refusal. At any time within one hundred twenty (120) days
after receipt of the Notice, the non-Selling Shareholder may, by giving
written notice to the Selling Shareholder, elect to purchase all but not less than
all of such Offered Shares, at the purchase price determined in accordance
with subsection (iii) below.
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(iii)
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Purchase
Price. The
purchase price for the Offered Shares purchased by the non-Selling
Shareholder shall be the same purchase price as the price offered by the
proposed transferee. If such price includes consideration other than cash,
the cash equivalent value of the non-cash consideration shall be
determined by the Board of Company in good faith or, in the event the
Board cannot agree on a cash equivalent value, by an independent appraiser
mutually agreed upon by the Selling Shareholder and the non-Selling
Shareholder or other Financial
Expert.
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(iv)
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Payment. Payment of the
purchase price shall be made within thirty (30) days after the expiration
of the one hundred twenty (120)-day period set forth above or in the
manner and at the times mutually agreed upon by the Selling Shareholder,
the non-Selling Shareholder and
Company.
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11
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(v)
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Selling Shareholder’s
Right to Transfer. If the
Offered Shares proposed to be Transferred are not purchased by the
non-Selling Shareholder within the one hundred twenty (120)-day period set
forth above, the Selling Shareholder may sell or otherwise Transfer all of
such Offered Shares to the proposed transferee at the price offered to the
non-Selling Shareholder or at a higher price, provided that such sale or
other transfer is (A) consummated within ninety (90) days after the
termination of the one hundred twenty (120)-day period following receipt
of the Notice, (B) effected in accordance with the terms of this Agreement
and all Related Agreements, and (C) effected in accordance with any
applicable laws of Pakistan, and if prior to such Transfer, such third
party executes and delivers to Company, for the benefit of Company and all
Shareholders, a Joinder. If the Offered Shares described in the
Notice are not transferred to the proposed transferee within such ninety
(90)-day period, a new Notice shall be given to the non-Selling
Shareholder and it or he shall again be offered a right of first refusal
pursuant to this Agreement, before any shares held by the Selling
Shareholder may be sold or otherwise
Transferred.
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(vi)
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Closing. The
closing of any purchase and sale of any shares pursuant to this Section
3.5 shall take place at the offices of Company, or such other location as
the parties to the sale may agree, on such date as shall be agreed by such
parties. At the closing of such purchase and sale, the Selling
Shareholder shall deliver certificates or other instruments, as
applicable, evidencing the Offered Shares being sold, duly endorsed or
accompanied by written instruments of transfer in a form reasonably
satisfactory to the purchaser thereof, duly executed by the Selling
Shareholder, free and clear of any adverse claims and liens, and the
transferee shall deliver the purchase price and an executed
Joinder.
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3.6
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Operations and
Accounting Matters.
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(a)
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Company
will be responsible for the operation of the Facility and any Additional
Facilities in compliance with the laws of Pakistan and Company’s
contractual obligations.
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(i)
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Unless
otherwise agreed, except for tasks customarily performed by independent
contractors, and except for any employees that are engaged on a contract
basis through a recognized labor contractor, the labor force used in the
operation of Company’s business, including management and supervisory
personnel, will be employees of
Company.
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(ii)
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Operational
control of all Company’s activities will be exercised by its management
and not by its shareholders, except to the extent set forth in this
Agreement.
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(iii)
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In
addition to any applicable legal requirements under Pakistan or US law,
the Board will adopt, and Company will comply with, such policies relating
to the protection of the environment, health and safety of workers, and
employment of minors that are consistent with any legal or contractual
obligations, whether arising under applicable law, the laws of Pakistan,
agreements or customer policies, as may from time to time be imposed upon
WPP or its Affiliated Entities (or their successors) in connection with
the sale in the United States or elsewhere of products produced by
Company, including but not limited to the WPH Sourcing Policies for
Imported Merchandise, as amended from time to time, a copy of which is
attached hereto as Schedule
3.6(a).
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(b)
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Company’s
production schedule, including the type and quality of product runs, will
be established and modified from time to time as necessary in order to
enable Company to meet its supply obligations to WPH under the WPH Supply
Agreement (see below).
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(c)
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Both
IDM and WPH will provide technical assistance to Company pursuant to
technical assistance agreements to be negotiated among the parties and
which shall become effective as of the Closing. Subject to
limits to be agreed by IDM and WPH, technical assistance will be provided
without charge to Company.
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12
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(d)
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The
parties shall cause Company to provide WPH and its Affiliated Entities
office space and facilities (including access to telephone, computer and
related business systems) with separate access from other occupants of the
space, including offices occupied by Company’s management, which space
shall be sufficient to accommodate no fewer than ten (10) executives and
representatives of WPH and its Affiliated Entities and shall include
reasonable conference and meeting room facilities. The parties
contemplate that such space shall comprise approximately two hundred
thirty-three (233) square meters. Such space will be provided
rent-free for the first year following the Closing and thereafter at an
annual rental to be agreed between the parties based on prevailing rates
for comparable space. In addition, WPH agrees that it shall be
responsible for the costs of all utilities used by it and any Affiliated
Entities in respect of such office space and that it will enter into
appropriate arrangements with Company with respect to payment of such
costs.
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(e) The
fiscal year of Company shall end on June 30.
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(f)
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Unless
otherwise agreed between WPP and IDM, the auditors of Company will be
Anjum Asim Shahid Rahman, the accounting firm based in Pakistan that is
affiliated with Grant Thornton.
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(g)
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Company’s
financial accounts will be maintained in accordance with generally
accepted accounting principles applicable in Pakistan; provided that
Company will also prepare financial statements in accordance with US
generally accepted accounting principles to the extent required in order
to comply with the financial and accounting controls applicable to WPP or
its successor. Each party will be entitled to require Company
to provide to it all such information as may be required for the purposes
of the preparation of their respective accounts in accordance with such
generally accepted accounting principles and the requirements of the law
applicable in their respective jurisdictions. Any such
information furnished by Company shall be provided to both WPP and IDM,
regardless of which party requested such information, and each party will
be entitled to receive all such information relating to the affairs of
Company as may be requested at any time and from time to
time. Company will provide to the parties regular and periodic
reports on the business, operations and financial and other affairs of
Company, including without limitation a balance sheet, income statement
and statement of cash flows prepared in accordance with generally accepted
accounting principles in Pakistan and the United States, which shall be
distributed to the parties on a monthly basis, in
arrears.
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(h)
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Company
shall keep its funds separate from those of any other person and shall
maintain its own depository, banking and similar
accounts.
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(i)
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The
parties agree to ensure that Company’s information systems are compatible
with WPH’s information systems and are capable of handling Electronic Data
Interchange (EDI) transactions, including electronic transfer of design
patterns and similar items. WPH will have the right to approve
all information systems used by Company in connection with the design,
manufacturing, inventory, distribution of products and logistics,
including storage, packaging and labeling. WPH will assist
Company in the design, installation and start-up of Company’s technology
infrastructure pursuant to agreements to be negotiated among the parties,
which will compensate WPH for costs incurred by WPH. The annual
operating budget of Company will take these requirements into
account.
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13
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(j)
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WPP
and IDM will develop a mutually acceptable plan for the expansion of the
Facility by the construction of Additional Facilities, which will include
approximately fifty (50) to sixty-five (65) additional looms, for a total
of approximately one hundred ten (110) looms, as well as dyeing,
finishing, distribution and yarn manufacturing activities. This
plan will include agreed deadlines for (A) completion, commissioning and
commercial production and (B) standards for determining the quality of the
additional products manufactured or services provided at the Additional
Facilities.
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(k)
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Except
for the transactions between the parties reflected in the WPH Supply
Agreement and the other Project Documents, any transactions or agreements
between Company and any of its Affiliated Entities, including WPP, WPH and
members of the Indus Group, will be entered into on an arms’ length basis,
upon terms that are no less favorable to Company than would apply in a
transaction with a person or entity that is not an Affiliated Entity, or
that are fully disclosed to and approved by the
Board.
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3.7
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Compliance with Laws
Regarding Payments. The parties agree that neither
Company nor its officers or directors, nor anyone for whose acts or
defaults Company may be vicariously liable or anyone acting on behalf of
any of them, including any party hereto, shall make any payments in
violation of applicable laws of Pakistan in connection with or in any way
relating to or affecting this Agreement or the business to be carried on
by Company nor shall such persons make any payments in violation of the
Business Ethics Policy of WPH. In addition, the parties
acknowledge that the laws of the United States of America, including the
Foreign Corrupt Practices Act, prohibit any direct or indirect payment of
money or anything of value to any governmental official, international
organization, political party or candidate for political office for the
purpose of obtaining or retaining business. The parties
represent and warrant to each other that in the performance of their
obligations under this Agreement or otherwise in connection with this
Agreement they have not made and agree that they will not make any such
prohibited payment, and they will cause Company not to make any such
prohibited payment.
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4.
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Sale of the
Facility.
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4.1
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General. During
the period between the issuance of the Certificate of Commencement and the
Closing, IDM shall, and IDM and WPP shall cause Company to, enter into a
facility purchase and sale agreement (the “Facility Purchase
Agreement”), in a form mutually agreed upon by IDM and WPP,
pursuant to which Company will purchase the Facility, and no less than
forty (40) acres of real property (the “Property”), which shall
include the real property on which the Facility is located and
approximately 35 acres of additional real property adjoining the Facility
to accommodate any Additional Facilities that have been discussed or
constructed by the parties. The purchase of the Facility shall
include all of the fixtures, plant, equipment, systems, supplies and spare
parts associated with the Facility, as specifically identified in the
exhibits to the Facility Purchase Agreement. The transactions
contemplated in the Facility Purchase Agreement shall be consummated at
the Closing.
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4.2
|
Purchase
Price. As more fully described in the Facility Purchase
Agreement, the purchase price for the Facility shall be the book value as
determined in accordance with the records of IDM and approved by WPP
(which is estimated to be approximately seventeen million United States
dollars (US$17,000,000)), and the purchase
price for the Property shall be forty thousand United States dollars
(US$40,000.00) per acre.
|
14
|
5.
|
Sale of WPH
Equipment.
|
|
|
5.1
|
General. During
the period between the issuance of the Certificate of Commencement and the
Closing, WPH shall, and WPP and IDM shall cause Company to, enter into an
equipment purchase and sale agreement in a form mutually agreed upon by
the parties hereto (the “WPH Equipment Purchase
Agreement”) pursuant to which Company will, if feasible, purchase
looms and other textile manufacturing equipment previously in service in
WPH facilities in the United States and offered by WPH to
Company. The transactions contemplated in the WPH Equipment
Purchase Agreement shall be consummated at the
Closing.
|
|
|
5.2
|
Purchase
Price. Subject to any additional or different terms
approved by the Board of Company, and as more fully described in the WPH
Equipment Purchase Agreement, the purchase price for any used equipment of
WPH shall be in accordance with the costs set forth in more detail in the
WPH Equipment Purchase Agreement (the “WPH Equipment
Value”).
|
|
|
5.3
|
Alternate Form of
Transfer. If WPP and IDM mutually agree, the
purchase price for the Facility or for any Additional Facilities or any
equipment may be financed through asset purchase loans or other seller
financing on terms agreeable to all of WPP, IDM and
Company.
|
|
6.
|
WPH Supply
Agreement. During the period between the issuance of the
Certificate of Commencement and the Closing, WPH shall, and IDM and WPP
shall cause Company to, execute the WPH Supply Agreement pursuant to which
WPH will purchase the Terry Products from Company, in a form mutually
agreed upon by the parties hereto (the “WPH Supply Agreement”),
which agreement shall become effective as of the
Closing.
|
|
7.
|
IDM Yarn Supply
Agreement. IDM or, if agreed, another member of the
Indus Group, will be given the right of first offer to supply Company with
yarn, provided that if Company is able to obtain yarn on better price,
quality or delivery terms from any other source, Company will purchase
yarn from such source. To the extent the parties agree on the
terms, IDM or the relevant member of the Indus Group shall, and IDM and
WPP shall cause Company to, execute a yarn supply agreement (the “Yarn Supply Agreement”),
which agreement may become effective as of the Closing or such
time thereafter as the parties shall
agree.
|
|
8.
|
Restrictions on the
Activities of WPP, WPH and IDM. In addition to any other
restrictions contained in the Project Documents, the parties will be
subject to the following restrictions on their activities in competition
with Company:
|
8.1 Activities of
IDM.
|
|
(a)
|
Neither
IDM nor any other member of the Indus Group, nor any of their Affiliated
Entities, will
|
|
|
(i)
|
manufacture,
sew or finish Terry Products or other home textile products that compete
with or are similar to those manufactured by Company (e.g. towels,
bathrobes and terry bathmats),
|
|
|
(ii)
|
own
any interest in, directly or indirectly, or otherwise participate in,
directly or indirectly, any entity other than Company that is involved in
any aspect of the manufacturing, sewing or finishing processes for Terry
Products or other home textile products that compete with or are similar
to those manufactured by Company (e.g. towels, bathrobes and terry
bathmats),
|
|
|
(iii)
|
participate,
directly or indirectly, in any other textile manufacturing, sewing or
finishing activity that competes with or is similar to that undertaken by
Company, or
|
|
|
(iv)
|
solicit
any employees of Company;
|
15
provided,
that the restrictions contained in this Section 8.1(a) shall not prohibit
IDM or any other member of the Indus Group or any Affiliated Entity from
manufacturing any products or carrying on any business currently conducted by
IDM or such member of the Indus Group or Affiliated Entity.
|
|
(b)
|
Without
limiting the restrictions in Section 8.1(a) above, for a period of thirty
(30) months from the Closing, neither IDM nor any member of the Indus
Group shall undertake any home textile products manufacturing or finishing
activities (excluding yarn production and other textile products currently
being marketed by IDM or such member of the Indus Group) without the
consent of WPP. WPP has the right to withhold consent or
require that such activities be undertaken through Company or a similarly
established joint venture arrangement on terms substantially similar to
those that apply to the Project (or a similar project). If
after such thirty (30) month period, IDM or any member of the Indus Group
wishes to engage in home textile products manufacturing or finishing
activities other than those described in Section 8.1(a) (excluding yarn
production and other textile products currently being marketed by IDM or
that member of the Indus Group), then IDM or such member of the
Indus Group shall notify WPP of its intentions. WPP shall have
the right to require that such activities be undertaken through Company or
a similarly established joint venture arrangement on terms substantially
identical to those that apply to the Project (or a similar
project). Subject to the restrictions in Section 8.1(a) above,
if WPP does not elect to require that such activity be conducted through
the Project (or a similar project) within sixty (60) days of its receipt
of notice from IDM or another member of the Indus Group, then IDM or such
member of the Indus Group will be permitted to engage in such activity
without the participation of WPP or
Company.
|
8.2 Activities of WPP and
WPH.
|
|
(a)
|
If
WPH wishes to engage in textile manufacturing or finishing activities
related to Terry Products in Pakistan in greater quantities than those
contemplated by the WPH Supply Agreement (including those contemplated by
Section 1) or if either WPP or WPH wishes to engage in new textile
manufacturing or finishing activities related to Terry Products other than
those then engaged in by Company, it will notify IDM. IDM will
have a right of first refusal with respect to the conduct of such activity
in cooperation with WPP or WPH, as the case may be, either through Company
or through another joint venture arrangement on terms substantially
identical to those that apply to the Project (or a similar project);
provided that WPH’s obligation to notify IDM and IDM’s right of first
refusal shall not apply if Company has breached any of the material
requirements of the WPH Supply Agreement, including any WPH requirements
with respect to timeliness, quality or cost competitiveness. If IDM does
not elect to require that such activity be conducted through the Company
or another joint venture arrangement within sixty (60) days of its receipt
of notice from WPP or WPH, then WPP or WPH, as the case may be, will be
permitted to engage in such activity without the participation of IDM or
Company. Such right of first refusal shall not apply to any additional
orders under, or renewals of, any existing manufacturing or supply
programs in which WPH is a participant in Pakistan, which current programs
shall be identified in an exhibit to the WPH Supply Agreement (the “Existing
Relationships”). IDM acknowledges and agrees that WPH
currently has Existing Relationships in Pakistan with other persons and
entities with respect to non-terry product textile manufacturing and
finishing activities (“Non-Terry Activities”)
and will continue to explore and enter into such relationships throughout
the Project Term. WPH will have no obligation to conduct such
Non-Terry Activities through Company or otherwise in conjunction with
IDM.
|
16
|
|
(b)
|
Except
as set forth in Section 8.2(a) above, neither WPP nor WPH will be
restricted from purchasing textile products, including Terry Products,
from any other vendor in or outside of Pakistan; provided that Company
will have a right of first refusal to sell to WPP or WPH, upon the same
price, quality and delivery terms, any Terry Products and other home
textile products purchased by WPP or WPH in Pakistan that are of the type
and quality manufactured by Company or capable of being manufactured by
Company without additional capital contributions by either WPP or IDM or
capital expenditures in excess of US$1,000,000 by Company; provided that
Company’s right of first refusal shall not apply if Company has breached
any of the material requirements of the WPH Supply Agreement, including
any WPH requirements with respect to timeliness, quality or cost
competitiveness. If Company does not elect to sell such
products to WPP or WPH on such price, quality and delivery terms within
sixty (60) days of its receipt of notice from WPP or WPH, then WPP or WPH,
as the case may be, will be permitted to purchase such products from any
other vendor. Such right of first refusal shall not apply to any
additional orders under, or renewals of, any Existing
Relationships.
|
|
9.
|
Term and
Termination.
|
|
|
9.1
|
Term. Subject
to Sections 9.3 and 9.6, the Project will have an initial term of ten (10)
years (the “Project
Term”), at the end of which time the Project Term will be extended
for an additional ten (10) years, unless either IDM or WPP notifies the
other no later than the end of the ninth (9th)
year of the Project Term that it does not wish to extend the Project
Term.
|
|
|
9.2
|
End of Project
Term. If either IDM or WPP has notified the other
pursuant to Section 9.1 that it does not wish to extend the Project Term,
or if required pursuant to Section 9.6(b), the following provisions
(the “Buy-Sell
Procedures”) will apply.
|
|
|
(a)
|
WPP Right to Initiate
Buy-Sell. No later than the 180th
day before the end of the Project Term, or within 20 days following the
occurrence of the 9.6(b) Date (as defined in Section 9.6), as applicable,
WPP will give written notice (the “Buy-Sell Notice”) to
IDM, which either
|
|
|
(i)
|
specifies
a price per share in US$ (the “WPP Specified Price”)
and is an unconditional offer by WPP to
either
|
|
|
(A)
|
purchase
all shares of the Company held by IDM (or any successor), including any
Director Shares held by any person appointed by IDM (or such successor) at
the WPP Specified Price, or
|
|
|
(B)
|
sell
to IDM all shares of the Company held by WPP (or any successor), including
any Director Shares held by any person appointed by WPP (or such
successor) at the WPP Specified Price,
or
|
|
|
(ii)
|
requires
IDM to specify a price per share in US$ (the “IDM Specified Price”)
and make an unconditional offer to WPP to
either
|
|
|
(A)
|
sell
to WPP all shares of the Company held by IDM (or any successor), including
any Director Shares held by any person appointed by IDM (or such
successor) at the IDM Specified Price,
or
|
|
|
(B)
|
purchase
all shares of the Company held by WPP (or any successor), including any
Director Shares held by any person appointed by WPP (or such successor) at
the IDM Specified Price.
|
|
|
(b)
|
IDM Response to
Buy-Sell Notice. Upon receipt of a Buy-Sell Notice from
WPP, IDM shall respond to WPP within thirty (30) days as
follows.
|
|
|
(i)
|
If
the Buy-Sell Notice from WPP constituted an offer as contemplated by
Section 9.2(a)(i), then IDM shall give to WPP a written election to
either
|
17
|
|
(A)
|
purchase
all shares of the Company held by WPP (and the WPP Director Shares), in
which case IDM will purchase the WPP shares (and the WPP Director Shares),
or
|
|
|
(B)
|
sell
all shares of the Company held by IDM, in which case WPP will purchase the
IDM shares (and the IDM Director
Shares),
|
in either
case upon the terms set out in the offer made pursuant to Section 9.2(a)(i), and
delivery of such election shall be deemed to be an acceptance of such offer and
shall constitute a legally binding agreement to perform the obligations pursuant
to such election.
|
|
(ii)
|
If
the Buy-Sell Notice from WPP required IDM to make an offer as contemplated
by Section 9.2(a)(ii), then IDM shall deliver to WPP a written notice
containing an offer in accordance with Section
9.2(a)(ii).
|
|
|
(c)
|
WPP Response to
Buy-Sell Offer. Upon receipt of an offer from IDM
pursuant to Section 9.2(a)(ii), within thirty (30) days WPP shall give to
IDM a written election to either
|
|
|
(A)
|
purchase
all shares of the Company held by IDM (and the IDM Director Shares), in
which case WPP will purchase the IDM shares (and the IDM Director Shares),
or
|
|
|
(B)
|
sell
all shares of the Company held by WPP, in which case IDM will purchase the
WPP shares (and the WPP Director
Shares),
|
in either
case upon the terms set out in the offer made pursuant to Section 9.2(a)(ii),
and delivery of such election shall be deemed to be an acceptance of such offer
and shall constitute a legally binding agreement to perform the obligations
pursuant to such election.
|
|
(d)
|
Terms of the
Offer. Any Buy-Sell Offer made by either WPP or IDM
pursuant to this Section 9.2 will have no terms other than the
purchase price, except that the purchase may be made by the offering party
or a wholly-owned subsidiary of the offering party (the “Purchaser”). For
the purposes of this Agreement, an offer contemplated by either Section
9.2(a)(i) or Section 9.2(a)(ii) is defined as a “Buy-Sell
Offer”.
|
|
|
(e)
|
Closing and Date of
the Closing. The closing (the “Buy-Sell Closing”) of
any purchase and sale under this Section 9.2 will take place no later than
the 30th day following the date on which the relevant Buy-Sell Offer is
accepted (the “Buy-Sell
Closing Date”); provided, however, that the Buy-Sell Closing Date
will be extended to the extent necessary to secure any required
governmental approval or consent so long as the person requiring such
approval or consent diligently pursues the same and every thirty (30) days
during such extension delivers to the other shareholder a certificate that
such approval is being diligently
pursued.
|
|
|
(f)
|
Deliveries at the
Closing. At the Buy-Sell
Closing,
|
|
|
(i)
|
the
Purchaser will pay to the selling party (the “Seller”) the full amount
of the purchase price in cash in US$ for the Seller’s shares in
immediately available funds,
|
|
|
(ii)
|
the
Purchaser will deliver to the Seller the documentation that the Purchaser
is to deliver under Section 9.2(h),
and
|
18
|
|
(iii)
|
the
Seller will deliver the documentation that the Seller is required to
deliver under Section 9.2(g).
|
|
|
(g)
|
Seller
Deliveries. At the Buy-Sell Closing, the Seller will
deliver to the Purchaser or its designee the following executed
documentation, in a form reasonably acceptable to the
Purchaser:
|
|
|
(i)
|
certificates
representing its shares, together with all necessary transfer
documentation;
|
|
|
(ii)
|
the
resignation of each of its designees who are acting as Directors or
Officers;
|
|
|
(iii)
|
a
representation and warranty by the Seller that its shares and all
indebtedness owed to it by the Company are free and clear of all liens
whatsoever, which representation and warranty will survive the Buy-Sell
Closing forever;
|
|
|
(iv)
|
a
general release of all claims against the Company and the Purchaser
relating to Company matters; and
|
|
|
(v)
|
such
other documentation as the Purchaser may reasonably require in order to
vest in the Purchaser full right, title and interest in and to the shares
of the Seller.
|
|
|
(h)
|
Purchaser
Deliveries. At the Buy-Sell Closing, the Purchaser will
deliver to the Seller:
|
|
|
(i)
|
the
purchase price determined in accordance with this Section 9.2,
subject to the following:
|
|
|
(A)
|
If
the Seller owes money to the Company, then the purchase price payable to
the Seller will be reduced by the amount of the unpaid principal and
accrued but unpaid interest of such indebtedness and such amount will be
paid by the Purchaser to the
Company.
|
|
|
(B)
|
If
the Company owes money to the Seller, then the Company will pay the Seller
the unpaid principal and accrued and unpaid interest of such indebtedness
simultaneously with payment of the purchase price;
and
|
|
|
(ii)
|
a
general release of all claims against the Seller by the Company and the
Purchaser relating to Company matters, except for claims arising from the
unauthorized actions of the Seller in respect of the Company that have not
been disclosed to the Purchaser and except for the continuing obligations
of the Seller under this Agreement or any Related Agreement with respect
to confidentiality and
competition.
|
|
|
(i)
|
Failure to Complete
Buy-Sell. If either party (“Party A”) is required to
purchase the other party’s (“Party B”) shares
pursuant to a Buy-Sell Offer and fails, for any reason, other than a
failure by Party B to comply with the terms of this Section 9.2, to
complete such purchase by the Buy-Sell Closing Date, then Party B shall
have the right exercisable in its discretion either (A) to purchase all of
Party A’s shares at a price equal to the product of 0.80 times the
applicable purchase price in the Buy-Sell Offer, or (B) to pursue such
other remedies, including a claim for breach of contract, as may be
available under applicable law. The parties acknowledge that
damages may be difficult to estimate and agree that Party B shall be
entitled to seek specific performance of its rights under this Section 9.2
and other equitable remedies. In addition, Party A shall be
deemed to have given to Party B an irrevocable proxy to vote all the
shares of the Company that are the subject of such Buy-Sell Offer and to
receive and retain all dividends or other distributions that may be made
or declared with respect to such
shares.
|
19
|
|
(j)
|
Completion of
Buy-Sell. Effective upon any purchase by one party of
all the other party’s shares in the Company pursuant to a Buy-Sell Offer,
this Agreement shall be terminated except for Section 13, which shall
survive the termination, but unless otherwise specified in the WPH Supply
Agreement or the Yarn Supply Agreement, such termination shall not affect
the WPH Supply Agreement or the Yarn Supply
Agreement.
|
|
|
9.3
|
Termination upon
Default. Either IDM or WPP and WPH (acting together)
(the “Non-Defaulting
Party”) will have the right to terminate this Agreement by notice
(a “Default
Notice”) to the other party (the “Defaulting Party”) upon
the occurrence of an Event of Default with respect to the Defaulting
Party.
|
|
|
(a)
|
“Event of Default” means,
with respect to a party:
|
|
|
(i)
|
a
material breach by the Defaulting Party of its obligations under this
Agreement or any of the Related Agreements or other agreements between the
Defaulting Party and Company;
|
|
|
(ii)
|
repudiation
(without any breach existing by the other side) by the Defaulting Party of
its obligations with respect to any performance not yet due: (A) under
this Agreement or (B) under any Related
Agreement;
|
|
|
(iii)
|
an
Insolvency Event of the Defaulting
Party;
|
|
|
(iv)
|
either
party acting to consolidate or amalgamate with, or merge with or into, or
transfer all or substantially all of its assets to, or reorganize,
incorporate, reincorporate, or reconstitute into or as, another entity, or
another entity undertaking to transfer all or substantially all of its
assets to, or reorganize, incorporate, reincorporate, or reconstitute into
or as, that party (collectively, a “Combination”) and after
such Combination the resulting, surviving transferee or successor entity
fails to assume all the obligations of that party under this Agreement or
any Related Agreement to which it or its predecessor was a party by either
operation of law or pursuant to an agreement reasonably satisfactory to
the other party to this Agreement;
or
|
|
|
(v)
|
making
by the Defaulting Party of a materially incorrect or misleading
representation or warranty under this Agreement or any Related
Agreement;
|
provided
that no event or occurrence described in paragraphs (i) or (v) above shall
constitute an Event of Default if the effect of such event is cured within 30
days following receipt of written notice of such event or occurrence, or any
longer period so long as the event or occurrence is curable and the Defaulting
Party is proceeding diligently to cure such default as promptly as
possible.
|
|
(b)
|
“Insolvency Event” with
respect to a party means that such
party:
|
|
|
(i)
|
is
dissolved (other than pursuant to a consolidation, amalgamation or
merger);
|
|
|
(ii)
|
becomes
insolvent or is unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become
due;
|
|
|
(iii)
|
makes
a general assignment, arrangement or composition with or for the benefit
of its creditors;
|
20
|
|
(iv)
|
institutes
a proceeding seeking a judgment of insolvency or bankruptcy or any other
relief under any bankruptcy or insolvency law or other similar law
affecting creditors' rights;
|
|
|
(v)
|
has
a resolution passed for its winding-up, official management or liquidation
(other than pursuant to a consolidation, amalgamation or
merger);
|
|
|
(vi)
|
seeks
or becomes subject to the appointment of an administrator, provisional
manager, liquidator, conservator, receiver, trustee, custodian or other
similar official for it or for all or substantially all of its assets, and
in the case of an involuntary appointment, the order of appointment has
not been set aside within sixty (60) days of such
order;
|
|
|
(vii)
|
has
a receiver appointed to take possession of all or substantially all of its
assets or has a distress, execution, attachment, sequestration or other
legal process levied, enforced or sued on or against all or substantially
all of its assets;
|
|
|
(viii)
|
causes
or is subject to any event with respect to it which, under the applicable
laws of any jurisdiction, has an analogous effect to any of the events
specified in clauses (i) to (vii) (inclusive);
or
|
|
|
(ix)
|
takes
any action in furtherance of, or indicating its consent to, approval of,
or acquiescence in, any of the foregoing
acts.
|
|
|
9.4
|
Remedies upon
Default. Upon the occurrence of an Event of Default, the
Non-Defaulting Party will have the right to exercise any one or more of
the following remedies:
|
|
|
(a)
|
The
Non-Defaulting Party shall have the right to purchase from the Defaulting
Party all of the shares of Company owned by the Defaulting Party
(including any shares held by its assignees and any Directors’ Shares held
by directors appointed by the Defaulting Party), at a price equal
to
|
|
|
(i)
|
the
product of 0.80 multiplied by the Ownership Percentage of the Defaulting
Party, multiplied by
|
|
|
(ii)
|
the
fair market value of the assets of Company after taking into account all
of Company’s liabilities, as determined by an internationally recognized
investment bank or other financial
advisor.
|
|
|
(b)
|
The
Non-Defaulting Party shall have the right to require the Defaulting Party
to purchase all shares in Company held by the Non-Defaulting Party
(including any shares held by its assignees and any Directors’ Shares held
by directors appointed by the Non-Defaulting Party) at a price equal
to
|
|
|
(i)
|
the
Ownership Percentage of the Non-Defaulting Party, multiplied
by
|
|
|
(ii)
|
the
fair market value of the assets of Company after taking into account all
of Company’s liabilities, as determined by an internationally recognized
investment bank or other financial
advisor.
|
|
|
(c)
|
The
Non-Defaulting Party shall have the right to require the parties to bid
against each other to purchase the outstanding shares in Company held by
the other party (including any shares held by any assignees of a party and
any Directors’ Shares held by directors appointed by such party), or if no
such bids are received, to require Company to be wound up in accordance
with the laws of Pakistan.
|
21
|
|
(d)
|
Subject
to the limitations set forth in Section 9.8, the Non-Defaulting Party
shall have the right to recover from the Defaulting Party damages arising
from an Event of Default.
|
|
|
(e)
|
Any
remedies of the parties set forth in this Agreement shall be in addition
to and not in lieu of remedies provided pursuant to the terms of any
Related Agreement, and neither party shall, by electing any remedy in this
Agreement, be deemed to have waived any other or additional remedy under
any Related Agreement.
|
|
|
9.5
|
Non-Defaulting Party
Right to Cure. Upon the occurrence of an Event of
Default under Section 9.3(a), and the failure by the Defaulting Party to
cure such Event of Default within thirty (30) days, the Non-Defaulting
Party may, at any time prior to giving a Default Notice and to the extent
it is able to do so, cure such Event of Default, and recover from the
Defaulting Party the costs of such
cure.
|
|
|
9.6
|
Board
Deadlock. If at any time WPP and IDM or their respective
successors (the “Deadlocked Parties”)
reach a Deadlock (as defined below), and the Deadlocked Parties fail to
resolve the Deadlock within forty-five (45) days, then the following
procedures will apply.
|
|
|
(a)
|
The
Deadlocked Parties shall first submit the deadlocked issue to non-binding
mediation by an internationally recognized business executive selected
jointly by WPP and IDM, with at least ten (10) years experience in the
international textile industry who is independent and has not been
affiliated with WPP, WPH, IDM or any Affiliated Entities of any of them
during the previous three (3)
years.
|
|
|
(b)
|
If
WPP and IDM fail to agree on a mediator within fifteen (15) days
of either party declaring that the Deadlock cannot be resolved
by the parties, or if the Deadlock remains unresolved within thirty (30)
days after the appointment of the mediator (the date of any such event
being referred to as the “9.6(b) Date”), then
either Deadlocked Party may declare the Deadlock irresolvable, in which
case the Deadlocked Parties will implement the Buy-Sell Procedures with
the effects specified in Section 9.2, provided that if the Buy-Sell
procedures are implemented prior to the fifth anniversary of the Closing
then
|
|
|
(i)
|
WPP
shall not have the option provided in Section 9.2(a) to require IDM to
specify the price, but shall itself be required to make a Buy-Sell Offer
to which IDM shall be required to respond in accordance with Section
9.2(b), and
|
|
|
(ii)
|
the
purchase price per share specified in such Buy-Sell Offer must not be less
than an amount equal to an amount resulting from dividing (A) the value of
all the Company’s assets as shown on the Company’s most recent regularly
prepared balance sheet plus the amount of any outstanding irrevocable
commitments of Company to purchase items of equipment which are not
accounted for in the book value of Company’s assets, minus the value of
all liabilities shown on such balance sheet, by (B) the total number of
outstanding shares of the Company.
|
|
|
(c)
|
A
“Deadlock” shall
be deemed to have occurred if
|
|
|
(i)
|
at
any two successive duly called meetings of the Board either or both, or
any combination of, (A) or (B) occur: (A) a matter has been proposed by
one party, has been brought to a vote, has received the support of at
least two Directors nominated by the proposing party, and has failed to
receive the vote of at least two Directors nominated by the other party,
or (B) one or more Directors appointed by a party (or their alternates)
fail to attend as a result of which the meeting lacks a quorum, and either
WPP or IDM gives written notice to the other within 15 days after the date
of the second such meeting declaring that a deadlock has been reached,
or
|
22
|
|
(ii)
|
at
any duly called meeting of the shareholders of Company either or both, or
any combination of, (A) or (B) occur: (A) a matter has been proposed by
one party, has been brought to a vote, has received the support of that
party, and has failed to receive the vote of the other party, provided
that for this purpose, the votes cast by a party, any Directors nominated
by it, and any Affiliated Entity that holds any shares, shall be
aggregated, or (B) any party fails to attend as a result of which the
meeting lacks a quorum and either WPP or IDM gives written notice to the
other within 15 days after the date of such meeting declaring that a
deadlock has been reached.
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|
|
9.7
|
Winding
Up. If Company is required to be wound up then, unless
otherwise agreed and subject to applicable Pakistan
law,
|
|
|
(a)
|
all
outstanding liabilities of Company will be paid in full or, if
appropriate, covered by adequate reserves set aside for such
payment,
|
|
|
(b)
|
all
accrued and unpaid dividends or other distributions will be
paid,
|
|
|
(c)
|
any
remaining assets will (A) be distributed to WPP and IDM in accordance with
their Ownership Percentages or (B) if such distribution is not
practicable, will be sold at fair market value with the proceeds being
distributed to WPP and IDM in accordance with their Ownership
Percentages.
|
|
|
9.8
|
Exclusion of
Consequential Damages. Notwithstanding
anything to the contrary contained herein, no party shall, under any
circumstances, be liable to any other party for lost profits,
consequential, incidental, special, punitive, or indirect damages arising
out of or related to this Agreement or the transactions contemplated
hereunder, even if the defaulting party has been apprised of the
likelihood of such damages.
|
|
|
9.9
|
Termination of WPH
Obligations. Effective upon any transfer by WPP of its
shares of stock in Company to any person other than an Affiliated Entity
in accordance with the terms of this Agreement, the obligations of WPH to
Company under this Agreement shall be terminated, except the obligations
of WPH described in Section 2.3(c) and Sections 13, 14 and 15.7, which
shall survive such termination. The parties acknowledge and
agree that the obligations of WPH subject to termination in accordance
with this Section 9.9 shall include those obligations set forth in
Sections 3.6(c) and 3.6(i) and Sections 8.2(a) and
8.2(b).
|
|
10.
|
Representations and
Warranties.
|
|
|
10.1
|
Representations and
Warranties of WPH and WPP. WPP and WPH each hereby
represent and warrant to IDM, as of the date hereof, as
follows:
|
|
|
(a)
|
Status. Each
of WPP and WPH is a corporation validly existing and in good standing
under the laws of the State of Delaware, U.S.A. Each of WPP and
WPH has all necessary power to enter into this Agreement and the
applicable Related Agreements.
|
|
|
(b)
|
Authorization,
etc. The execution, delivery and performance by WPH and WPP of this
Agreement has been authorized by all necessary action on the part of WPP,
WPH and their respective shareholders, and does not and will
not
|
|
|
(i)
|
violate
the organizational documents of WPP, WPH or any applicable Pakistani law,
or
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23
|
|
(ii)
|
contravene,
conflict with, or result in a default under any prior order or judgment of
any court or other governmental authority or any agreement to which either
WPP or WPH is currently a party or by which any of the assets of either
are currently bound.
|
|
|
(c)
|
Governmental Consents,
etc. No governmental and other authorizations,
approvals, consents, notices, and filings are required to have been
obtained or submitted by WPP or WPH prior to the execution and delivery of
this Agreement, or if any are required, they have been obtained and are in
full force and effect.
|
|
|
(d)
|
Enforceability. The
obligations of WPP, WPH and any Affiliated Entities of either under this
Agreement or any other agreement entered into by WPP, WPH or such
Affiliated Entity in connection with this Agreement or the Project are and
will be the legal, valid, and binding obligation of WPP, WPH or
such Affiliated Entity, as the case may be, enforceable against
such entity in accordance with its terms, subject to applicable
bankruptcy, reorganization, insolvency, moratorium, or similar laws
affecting creditors’ rights generally and subject as to enforceability, to
equitable principles of general application regardless of whether
enforcement is sought in a proceeding in equity or at
law.
|
|
|
(e)
|
Litigation. There
are no suits, proceedings, judgments, rulings or orders by or before any
governmental authority, court or arbitrator or any pending or threatened
action or proceeding affecting WPP, WPH or any of their respective
Affiliated Entities before any governmental authority, court or arbitrator
that could reasonably be expected to materially and adversely affect the
ability of WPP or WPH to perform its obligations under this Agreement or
any other agreement entered into by it in connection with this Agreement
or the Project, or which purports to affect the legality, validity or
enforceability of this Agreement or any other such
agreement.
|
|
|
10.2
|
Representations and
warranties of IDM. IDM hereby represents and warrants to
WPH and WPP as follows:
|
|
|
(a)
|
Status. IDM
is a public limited company duly organized, validly existing and in good
standing under the laws of Pakistan. IDM has all necessary
power to enter into this Agreement and the Related
Agreements.
|
|
|
(b)
|
Authorization,
etc. The execution, delivery and performance by IDM of this
Agreement does not and will not
|
|
|
(i)
|
violate
the organizational documents of IDM or any applicable Pakistani law,
or
|
|
|
(ii)
|
contravene,
conflict with, or result in a default under any prior order or judgment of
any court or other governmental authority or any agreement to which IDM is
currently a party or by which any of its assets are currently
bound.
|
|
|
(c)
|
Governmental Consents,
etc. No governmental and other authorizations,
approvals, consents, notices, and filings that are required to have been
obtained or submitted by IDM prior to the execution and delivery of this
Agreement or in connection with the sale of the Facility, or if any are
required, they have been obtained and are in full force and
effect.
|
24
|
|
(d)
|
Enforceability. The
obligations of IDM and any Affiliated Entity under this Agreement and any
other agreement entered into by IDM or such entity in connection with this
Agreement or the Project are and will be the legal, valid, and binding
obligation of IDM or such Affiliated Entity, enforceable against such
entity in accordance with its terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium, or similar laws affecting
creditors’ rights generally and subject as to enforceability, to equitable
principles of general application regardless of whether enforcement is
sought in a proceeding in equity or at
law.
|
|
|
(e)
|
Litigation. There
are no suits, proceedings, judgments, rulings or orders by or before any
governmental authority, court or arbitrator or any pending or threatened
action or proceeding affecting IDM or any of its Affiliated Entities
before any governmental authority, court or arbitrator that could
reasonably be expected to materially and adversely affect the ability of
IDM to perform its obligations under this Agreement or any other agreement
entered into by it in connection with this Agreement or the Project, or
which purports to affect the legality, validity or enforceability of this
Agreement or any other such
Agreement.
|
|
|
(f)
|
Merger with
YTM. IDM and YTM have taken all steps necessary to merge
YTM with and into IDM, and all of the properties, assets, liabilities,
rights, powers, licenses, contracts and obligations of YTM, including the
Facility, have vested in IDM pursuant to and in accordance with the order
dated November 29, 2005, of the High Court of Sindh at Karachi, passed in
Judicial Miscellaneous Application No. 8 of 2005. All of such
properties, assets, liabilities, rights, powers, licenses, contracts and
obligations of YTM, including the Facility, have been, from the effective
date of the merger (October 1, 2004) carried on for the account of IDM,
and all of such properties, assets, liabilities, rights, powers, licenses,
contracts and obligations now belong or accrue to or are obligations of or
charges against IDM.
|
|
|
10.3
|
No Other
Representations or Warranties. Except for the
representations and warranties expressly set forth in this Agreement,
neither WPH and WPP on one hand, nor IDM on the other hand is relying upon
any statement, representation or warranty made by the other or any of the
Affiliated Entities or agents of the other, or any of their respective
officers or employees; provided, that nothing in this clause shall limit
any liability arising from fraud or fraudulent
misrepresentation. Without limiting the preceding sentence,
each party expressly acknowledges, represents and warrants to the other
parties as follows:
|
|
|
(a)
|
The
Project. No representation or warranty is made by any
party or any of its Affiliated Entities with respect to the possible
revenues, profits or losses that may arise from the Project or any
transaction contemplated by this Agreement or any Related
Agreement.
|
|
|
(b)
|
Investment
Risk.
|
|
|
(i)
|
The
investments in Company and the Project contemplated by this Agreement
involve a high degree of risk and are
illiquid.
|
|
|
(ii)
|
Each
party has a full understanding of the terms and risks of the Project and
is capable of assuming those risks.
|
|
|
(c)
|
Information. Representatives
of each party have had an opportunity to ask questions and receive answers
about the Project and to obtain additional information from the other
parties for verification purposes. Each party has retained and
will retain legal and professional advisors of its choice and is not
relying upon advice rendered by any advisors other than those employed or
retained by it.
|
|
|
(d)
|
Relationship between
the Parties; Non-Reliance. In entering into this
Agreement and any Related Agreement and any transactions in connection
with the Project, each party
|
|
|
(i)
|
is
acting for its own account as a principal (and not as an advisor, agent,
broker or in any other capacity, fiduciary or otherwise),
and
|
25
|
|
(ii)
|
has
made an independent decision to pursue the Project and to enter into this
Agreement and the Related Agreements based on its own evaluation of the
costs, risks and benefits of the Project and not in reliance upon any view
expressed by the other parties to this Agreement or their Affiliated
Entities.
|
|
11.
|
Guarantees. Unless
otherwise agreed by the parties, neither WPP, WPH, IDM nor any Affiliated
Entity of any of them will be required to provide any guarantee either to
the other parties or to any third party, with respect to the obligations
of Company under any loan or credit agreement, lease, purchase or supply
agreement or other agreement of any
kind.
|
|
12.
|
Taxes.
|
|
|
12.1
|
General. The
parties will consult with each other and their respective tax advisors in
order to ensure that Company is organized and operated in a manner that
reduces the tax burden on it and its shareholders to the greatest extent
compatible with the financial targets established by the Board and
Company’s obligations under its
contracts.
|
|
|
12.2
|
Disclaimer. Notwithstanding
the provisions of Section 12.1, no party is relying on any other party or
any advisor of any other party in evaluating its tax liability and
exposure with respect to any part of the transactions included in the
Project. No party makes any representation, warranty, covenant
or guarantee of any kind to the other parties or to any Affiliated Entity
of the other parties with respect to any tax outcome or tax treatment,
including any filing, reporting, withholding or payment obligations that
may apply to any part of the
Project.
|
|
13.
|
Confidentiality and
Intellectual Property.
|
|
|
13.1
|
Confidential
Information. For purposes of this Agreement, and subject
to the special provisions in Section 13.3 below, “Confidential
Information” means information provided by a party to this
Agreement (the “Disclosing Party”) to
the other party to this Agreement or to Company (the “Restricted Party”) in
connection with the transactions and relationships contemplated by this
Agreement and any Related Agreement, including but not limited
to:
|
|
|
(a)
|
any
data or information that is competitively sensitive material, and not
generally known to the public, including, but not limited to, products,
planning information, marketing strategies, plans, finance operations,
sales estimates, business plans and internal performance results relating
to the past, present or future business activities of the Disclosing Party
and its Affiliated Entities and services and products provided to or
obtained from, the terms of related contracts with, and any other
identifying information regarding, the customers, clients and suppliers of
the Disclosing Party or its Affiliated
Entities;
|
|
|
(b)
|
any
scientific or technical information, design, process, procedure, formula,
or improvement that is commercially valuable and secret in the sense that
its confidentiality affords the Disclosing Party a competitive advantage
over its competitors;
|
|
|
(c)
|
all
confidential or proprietary concepts, documentation, reports, data
(including magnetic tapes), specifications, web sites, screen formats,
computer software, source code, object code, flow charts, databases,
inventions, systems, system security features, system enhancements,
information, know-how, show-how and trade secrets, whether or not
patentable or copyrightable;
|
|
|
(d)
|
all
documents, inventions, substances, engineering and laboratory notebooks,
drawings, diagrams, specifications, bills of material, equipment,
prototypes and models, and any other tangible manifestation of the
foregoing;
|
26
|
|
(e)
|
any
other information that the Disclosing Party treats as confidential
information, whether provided by the Disclosing Party, an Affiliated
Entity or any other third party;
and
|
|
|
(f)
|
any
information derived from any of the foregoing that is treated as
confidential.
|
|
|
13.2
|
Nondisclosure. Each
party shall treat as confidential, and IDM and WPP shall together cause
Company to treat as confidential, all Confidential Information of the
other parties. No party shall use such Confidential Information
except as set forth herein, and no party shall disclose such Confidential
Information to any third party. Except to the extent provided
in this Agreement, neither WPP, WPH nor IDM shall be entitled to access,
use or disclose any Confidential Information of the other parties solely
by virtue of the provision of such Confidential Information by the
Disclosing Party to Company.
|
|
|
13.3
|
Special Provisions as
to Certain Information. During the course of the
relationship contemplated by, and solely in order to permit Company to
fulfill its obligations under, the WPH Supply Agreement, or pursuant to
any technical assistance agreement that may be entered into by Company and
any of the parties (a “Technical Assistance
Agreement”), the parties may provide Company with
certain Confidential Information (the “Technical
Information”). All such Technical Information shall
remain at all times the Confidential Information of the disclosing
party. In no event shall the other parties have any right to
access, use or disclose the Technical Information. IDM and WPP
acknowledge and agree that they shall cause Company not to use such
Technical Information except as set forth in the WPH Supply Agreement or
any Technical Assistance Agreement and not to disclose the Technical
Information to any other person. Without limiting the
foregoing, in no event shall any party or Company use the Technical
Information under circumstances that could reasonably be expected to
facilitate the ability of a person or entity other than the disclosing
party or Company to manufacture or sell textile
products.
|
|
|
13.4
|
Exceptions. Notwithstanding
any provisions to the contrary in this Section 13, no party shall have
liability to the Disclosing Party with regard to any Confidential
Information of the Disclosing Party that the Restricted Party can prove:
(i) was in the public domain at the time it was disclosed or has entered
the public domain through no fault of the Restricted Party; (ii) was known
to the Restricted Party, without restriction, at the time of disclosure by
the Disclosing Party; (iii) was disclosed with the prior written approval
of the Disclosing Party; (iv) was independently developed by the
Restricted Party without any use of the Confidential Information; (v)
became known to the Restricted Party, without restriction, from a source
other than the Disclosing Party without breach of this Agreement by the
Restricted Party and otherwise not in violation of the Disclosing Party’s
rights; (vi) was disclosed generally to third parties by the Disclosing
Party without restrictions similar to those contained in this Agreement;
or (vii) was disclosed pursuant to the order or requirement of a court,
administrative agency, or other governmental body; provided, however, that
in any such event, the Restricted Party shall provide prompt notice
thereof to the Disclosing Party to enable the Disclosing Party to seek a
protective order or otherwise prevent or restrict such
disclosure. For purposes of Section 13, any Confidential
Information or Technical Information provided by either WPP or WPH shall
be deemed also to have been disclosed by the other, so that WPP and WPH
together shall be the disclosing
party.
|
|
|
13.5
|
Return of Confidential
Information. Upon expiration or termination of the
Project, WPP and WPH, on the one hand, and IDM, on the other, shall return
or, at the request of the other, destroy, and IDM and WPP together shall
cause Company to return or, if so required, destroy, all Confidential
Information received from the other
party.
|
27
|
|
13.6
|
Confidentiality of
Agreement. Each party shall be entitled to disclose the
existence of this Agreement, but the terms and conditions of this
Agreement shall be treated as Confidential Information and shall not be
disclosed to any third party; provided, however, that
each party may disclose the terms and conditions of this Agreement: (i) as
required by any court or other governmental body; (ii) as otherwise
required by law; (iii) to legal counsel of such party; (iv) in confidence,
to accountants, banks, and financing sources and their advisors; (v) in
connection with the enforcement of this Agreement or rights under this
Agreement; or (vi) in confidence, in connection with an actual or proposed
merger, acquisition or similar
transaction.
|
|
|
13.7
|
Intellectual
Property. Each of WPP, WPH and IDM acknowledge that,
during the Term of the Project, WPH or IDM may license or otherwise permit
Company to use certain patents, trademarks, trade names, service marks,
domain names, copyrights, designs, processes, formulae, methods,
schematics, technology, invention, trade secrets, know-how, computer
software programs or applications and tangible or intangible proprietary
information or material (collectively, “Intellectual Property”)
owned or licensed by such party (the “Owner”) in order to
permit Company to perform its obligations under the Project
Documents. The parties acknowledge and agree, and IDM and WPP
shall cause Company to acknowledge and agree, that except to the extent
that (i) such Intellectual Property is expressly and specifically
contributed in writing by the Owner thereof as part of an equity
contribution to Company or (ii) such Intellectual Property is expressly
and specifically sold to Company by the Owner thereof, neither Company or
the non-Owner parties shall acquire any rights, express or implied, in the
Intellectual Property other than those specified in Project Document
pursuant to which such license or right to use was granted. For
the avoidance of doubt, in no event shall Company license or otherwise
permit the non-Owner parties or any third party to use any such
Intellectual Property to which it may be given access pursuant to the
terms of the Project Documents.
|
|
|
13.8
|
Remedies. Any
breach of the restrictions contained in this Section 13 is a breach of
this Agreement that may cause irreparable harm to the non-breaching
party. Any such breach shall entitle the non-breaching party to
injunctive relief in addition to any other remedies available to
it.
|
|
14.
|
Dispute
Resolution.
|
|
|
14.1
|
Applicability of
Arbitration Provisions; Selection of
Arbitrators.
|
|
|
(a)
|
ICC
Rules. Except as provided in this Section 14, any
dispute arising out of or in connection with this Agreement or the
performance of the parties pursuant to this Agreement or any of the
Related Agreements, which cannot be resolved after discussion among the
parties as set forth herein, shall be submitted to binding arbitration in
accordance with the rules of the International Chamber of Commerce (“ICC”), except as
otherwise provided in this Agreement and except
that
|
|
|
(i)
|
where
this Agreement provides a specific remedy, the arbitrators’ authority
shall be limited to enforcing such specific remedy;
and
|
|
|
(ii)
|
to
the extent any dispute represents a failure to agree on any action or
decision that is within the scope of the authority of the Board or the
shareholders of Company under this Agreement or any of the Related
Agreements, such dispute shall not be subject to arbitration and instead
shall be resolved in accordance with Section
9.6.
|
|
|
(b)
|
Initiation of
Arbitration. Prior to initiating arbitration under this
Agreement, a party shall provide the other parties with a written notice
of the dispute, a proposed means for resolving the same, and the support
for such position. Thereafter, representatives of the parties shall meet
to discuss the matter and attempt in good faith to reach a negotiated
resolution of the dispute. If the parties have not agreed upon a
resolution of the dispute within ninety (90) days after the date of the
original notice provided under this subsection (b), or such other time
period as the parties may agree in writing to allow for discussions
(“Negotiation
Period”), then at any time after the end of the Negotiation Period,
a party may provide written notice to the other parties declaring an
impasse (“Impasse
Notice”) and initiating binding arbitration in accordance with the
further provisions of this Section 14. Arbitration will be
deemed to be initiated when an Impasse Notice, properly addressed and
stamped, is deemed given pursuant to Section
15.3.
|
28
|
|
(c)
|
Selection of
Arbitrators. The party initiating arbitration shall
nominate one arbitrator at the time it initiates arbitration, and the
other party shall nominate one arbitrator within ten (10) calendar days of
receiving the notice of arbitration, provided, that WPP and WPH shall be
treated as a single party for purposes of this Section 14.1(c) and shall
be entitled to nominate only one arbitrator. A party’s nominee
shall not be a representative or agent of such party. Such
nominee may but need not be an ICC panel member and, in any case, shall be
independent of the parties and not have a financial interest in any of the
parties or their Affiliated Entities or in the dispute. Each
nominee shall be competent and experienced in matters involving
international business transactions and shall be reasonably believed by
the nominating party to possess the requisite experience, education and
expertise in respect of the matters to which the claim relates to enable
such person to perform arbitral duties competently. The two
arbitrators shall appoint a third, neutral arbitrator who will act as
chairman of the arbitration panel. The third, neutral arbitrator shall (i)
be independent of the parties and not have a financial interest in any of
the parties or their respective Affiliated Entities or in the dispute,
(ii) be a practicing attorney with suitable experience with complex
disputes, and (iii) be unaffiliated and without prior financial alliances
with any party, any Affiliated Entity associated with a party or either of
the other arbitrators.
|
|
|
(d)
|
Selection by
ICC. If the two arbitrators are unable to agree on a
third arbitrator within thirty (30) calendar days after initiation of
arbitration, then a third arbitrator shall be selected by the ICC in
accordance with its rules, with due regard given to the selection criteria
above and to input from the parties and other arbitrators. ICC
shall complete selection of the third arbitrator no later than sixty (60)
calendar days after initiation of arbitration. Costs charged by ICC for
this service shall be divided equally between IDM and WPP and WPH, taken
together.
|
|
|
(e)
|
Selection by
Court. In the event ICC should fail to select the third
arbitrator within sixty (60) calendar days after initiation of
arbitration, then either IDM or WPH and WPP (acting together) may petition
a court of competent jurisdiction in London, England, or such other
location as the parties agree, to select the third arbitrator. Due regard
shall be given to the selection criteria above and input from the parties
and other arbitrators.
|
|
|
(f)
|
Replacement. If
prior to the conclusion of the arbitration any arbitrator becomes
incapacitated or otherwise unable to serve, a replacement arbitrator shall
be appointed in the manner described above and applicable to the original
arbitrator being replaced.
|
|
|
14.2
|
Discovery;
Hearing. Discovery and other pre-hearing procedures shall be
conducted as agreed by the parties, or if they cannot agree, as determined
by a majority of the arbitrators. Within fifteen (15) calendar
days after completion of discovery, the party submitting the Impasse
Notice initiating arbitration shall submit by overnight delivery to the
other parties and the arbitrators a precise statement of the dispute,
means of resolving the dispute, and the factual and/or legal support
therefor. Within ten (10) calendar days after receiving such
statement, the other parties shall submit by overnight delivery to the
first party and the arbitrators a precise statement of the alternative
means of resolving the dispute and the factual and/or legal support
therefor, provided, that for purposes of this Section 14.2, WPP and WPH
shall be deemed to be acting together. The parties shall conduct a hearing
no later than sixty (60) calendar days following selection of the third
arbitrator, or thirty (30) calendar days after all pre-hearing discovery
has been completed, whichever is later, at which the parties shall present
such evidence and witnesses as they may choose. Hearings shall
be conducted in London, England, or such other location as the parties may
agree. All proceedings will be conducted in English, and any
document submitted that is not in English will be accompanied by a
certified English translation, prepared at the expense of the party
submitting that document.
|
29
|
|
14.3
|
Decision. The
arbitrators shall consider the terms and conditions of this Agreement, and
any relevant evidence and testimony, and shall render their decision
within thirty (30) calendar days following conclusion of the hearing. The
arbitrators’ decision will be limited to selecting one of the alternatives
specified in the statements of the parties referred to in Section 14.2.
The decision rendered by a majority of the arbitrators, made in writing,
shall be final and binding upon the parties. Any such decision may be
filed in a court of competent jurisdiction and may be enforced by any
party as a final judgment in such court. The arbitrators shall have no
authority to award special, exemplary, punitive, indirect or consequential
damages.
|
|
|
14.4
|
Expenses. The
expenses of arbitration shall be divided equally between IDM, on the one
hand, and WPP and WPH, on the other, except that IDM and WPP and
WPH shall pay the compensation and expenses of its nominated
arbitrator, and its own counsel, witnesses and employees. Any
costs incurred by a party in seeking judicial enforcement of a decision
rendered in writing by the arbitrators, or a majority of the arbitrators,
shall be borne exclusively by the party against whom such court order is
obtained.
|
15. Miscellaneous.
|
|
15.1
|
Binding
Effect. This Agreement shall be binding on and inure to
the benefit of the parties and their respective successors and permitted
assigns.
|
|
|
15.2
|
Assignment. This
Agreement shall not be assigned by any party without the prior written
consent of the other parties, not to be unreasonably delayed or withheld,
except in connection with a transfer of shares of Company in accordance
with this Agreement. Any purported assignment without required
consent shall be void.
|
|
|
15.3
|
Notices And Other
Communications.
|
|
|
(a)
|
Each
notice, communication and delivery under this Agreement (i) shall be made
in writing signed by the party making the same, (ii) shall specify the
Section of this Agreement pursuant to which it is given, (iii) shall be
given either in person or by facsimile, and (iv) if not given in person,
shall be sent to the applicable parties at the address set forth below (or
at such other address as any party may furnish to the other parties
pursuant to this subsection) by international courier delivery service,
delivery charges pre-paid. Each party’s notice information is
as follows:
|
WPH and
WPP: WestPoint Home, Inc.
507 West
Tenth Street
P.O. Box
71
West
Point, Georgia 31833
Attn: Chief
Operating Officer
Phone: 706-645-4322
Fax: 706-645-4300
With a
copy to: WestPoint Home, Inc.
507 West
Tenth Street
P.O. Box
71
West
Point, Georgia 31833
Attn: General
Counsel
Phone: 706-645-4115
Fax: 706-645-5396
30
IDM:
Indus Dyeing & Manufacturing Co.,
Ltd.
Suite #508, 5th Floor
Beaumont Plaza, Beaumont
Raod
Civil
Lines,Karachi
Pakistan
Attn: Shahzad
Ahmed
Phone: 92-21-569-3641
Fax: 92-21-569-3593
With a
copy to: Irfan Ahmed
174 Abu
Bakar Block
New
Garden Town, Lahore
Pakistan
Phone:
92-42-586-9004
Fax:
92-42-586-9003
|
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(b)
|
Any
party may modify any information specified in this Section 15.3 by giving
written notice to the other
parties.
|
|
|
(c)
|
All
written communications made as provided in Section 15.3(a) shall be deemed
given upon receipt by the parties to which it is addressed, which, in the
case of facsimile, shall be deemed to occur by the close of the business
day on which the same is transmitted in the place of receipt or such
earlier time as is confirmed by the receiving
parties.
|
|
|
15.4
|
Severability. If
any term or provision of this Agreement, or the application thereof to any
person or circumstance, shall to any extent be contrary to any applicable
law or regulation or otherwise invalid or unenforceable, the remainder of
this Agreement or the application of such term or provision to persons or
circumstances other than those as to which it is contrary, invalid or
unenforceable shall not be affected thereby and, to the extent consistent
with the overall intent of this Agreement taken as a whole, shall be
enforced to the fullest extent permitted by applicable law and
regulation.
|
|
|
15.5
|
No
Waiver. No waiver by any party of any one or more
defaults by the other parties in the performance of any of the provisions
of this Agreement or any Related Agreement shall operate or be construed
as a waiver of any other default, whether of a like kind or different
nature. No delay by a party in the enforcement of any of its
rights under this Agreement shall be deemed a waiver of such
rights.
|
|
|
15.6
|
Relationship between
the Parties. Nothing in this Agreement shall create or
be deemed to create a partnership or joint venture between the parties and
except to the extent expressly specified in this Agreement or any Related
Agreement no party will or is entitled to act as agent for any other
party.
|
|
|
15.7
|
Expenses. Each
of IDM, on the one hand, and WPP and WPH, on the other, will be
responsible for the payment of all costs and expenses incurred by it in
connection with the preparation and negotiation of this Agreement and the
Related Agreements and unless, and only to the extent, agreed by the
parties, none of such costs or expenses will be borne by
Company.
|
|
|
15.8
|
No Third Party
Beneficiaries. This Agreement confers no rights
whatsoever upon any person other than WPP, WPH and IDM and shall not
create, or be interpreted as creating, any standard of care, duty or
liability to any person not a party hereto. Without limiting
the foregoing, no such person will have any right to enforce any of the
terms of this Agreement pursuant to the Contracts (Rights of Third
Parties) Act 1999.
|
|
|
15.9
|
Governing
Law. The Project Documents will be governed by the laws
of England and Wales except as specifically provided in such documents,
without regard to principles of conflict of
laws.
|
31
|
|
15.10
|
Certain Rules of
Construction. The following rules of construction will
apply throughout this Agreement and any Related
Agreement.
|
|
|
(a)
|
Headings. Any
headings used in this Agreement or in any Related Agreement are for the
purpose of convenience only and shall not affect the meaning or
interpretation of the agreement or document in
question.
|
|
|
(b)
|
Words of
Inclusion. The word “including” will not be construed to
be a term of limitation, so that references to “included” matters or items
will be regarded as illustrative and will not be interpreted as a
limitation on, or an exclusive listing of, the matters or items referred
to.
|
|
|
(c)
|
Singular and Plural
Forms; Genders. Whenever the context so requires, the
singular includes the plural and the plural includes the singular, and the
gender of any pronoun includes the other
genders.
|
|
|
(d)
|
Parties. The
word “parties” when used in this Agreement means WPP, WPH and IDM,
collectively.
|
|
|
15.11
|
Counterparts. This
Agreement may be executed by each party upon a separate copy, and in
several counterparts, each of which will be deemed an
original.
|
|
|
15.12
|
Obligation to
Act. Each of IDM and WPP shall each exercise all of its
rights as a shareholder of the Company in a manner that gives effect to
and is consistent with the provisions of this Agreement and the Related
Agreements; provided that, unless otherwise agreed in its sole and
absolute discretion, no party shall be obligated to provide any additional
funds to Company following the Closing, whether in the form of a purchase
of shares, capital contributions or
loan.
|
|
|
15.13
|
Amendment. This
Agreement may not be amended, modified or varied in any way except in a
writing signed by each of the
parties.
|
32
IN
WITNESS WHEREOF, the parties have executed, or caused to be executed, this
Agreement, by their duly authorized officers or agents as of the day and year
first above written.
|
WESTPOINT
HOME, INC.
|
|||||
|
Witness:
|
By:
|
||||
|
Name:
|
Name:
|
||||
|
Address:
|
Title:
|
||||
|
Witness:
|
|||||
|
Name:
|
|||||
|
Address:
|
|||||
|
WESTPOINT
PAKISTAN, INC.
|
|||||
|
Witness:
|
By:
|
||||
|
Name:
|
Name:
|
||||
|
Address:
|
Title:
|
||||
|
Witness:
|
|||||
|
Name:
|
|||||
|
Address:
|
|||||
|
INDUS
DYEING & MANUFACTURING
|
|||||
|
CO.,
LIMITED
|
|||||
|
Witness:
|
By:
|
||||
|
Name:
|
Name:
|
||||
|
Address:
|
Title:
|
||||
|
Witness:
|
||||
|
Name:
|
||||
|
Address:
|
||||