Escolar Documentos
Profissional Documentos
Cultura Documentos
AND
(2) EIGHT CAPITAL MASTER FUND LIMITED, a fund duly organized and
existing under the laws of Cayman, Island and having its registered office at C/o
M & C Corporate Services Limited, P.O. Box 309 CE 1, Ugland House, South
Church Street, George Town, Grand Cayman, hereinafter referred to as “Eight
Capital” (which expression shall unless it be repugnant to the meaning or context
thereof, include its successors in interest and permitted assigns) of the SECOND
PART;
AND
AND
AND
AND
(6) DR. R. B. BAHETI , an Indian National, residing at 23, Old Palasia, A.B.
Road, Indore (M.P.) 452 001 (which expression shall unless repugnant to the
meaning or context thereof, be deemed to include his respective heirs, executors
and administrators, or successors in interest) of the SIXTH PART;
AND
AND
(8) EAST WEST FINANCE PRIVATE LTD., a company incorporated under the
provisions of the Companies Act, 1956, and having its registered office at
__________________________________ (which expression shall unless
it be repugnant to the meaning or context thereof, include its successors in
interest) of the EIGHTH PART;
AND
AND
(10) STI PRODUCT INDIA LTD., a company incorporated under the provisions
of the Companies Act, 1956, and having its registered office at
__________________________ (which expression shall unless it be
repugnant to the meaning or context thereof, include its successors in interest) of
the TENTH PART;
AND
AND
(12) STI FINANCE LTD., a company incorporated under the provisions of the
Companies Act, 1956, and having its registered office at
_____________________________ (which expression shall unless it be
repugnant to the meaning or context thereof, include its successors in interest) of
the TWELFTH PART;
AND
AND
AND
AND
WHEREAS :
B. The Company had a total turnover and working capital loan as on 31st
December, 2006 of approximately Rs.195.46 Crores (Rupees One
Hundred Ninety Five Crores and Forty Six Lakhs only). The Company
reached One Time Settlement (OTS) with the Outgoing Secured Lenders.
C. Due to the recessionary market conditions in the past period and high
costs, the Company incurred losses and as a result of which the Company
filed a reference with BIFR on 30th October 2002, which is registered as
Case No.743 of 2002 and which is pending till date.
F. Even after the Investors investing the funds as mentioned hereinabove, the
working and the financial condition of the Company has worsened over
the past one year due to which and in consideration of the Investors being
out of pocket for an aggregate sum of Rs. ______________/-, the
parties hereto are desirous of appointing a Chief Financial Officer (CFO)
for the Company in the interest of all to manage the financial affairs of the
Company more efficiently who shall be vested with appropriate authority
and discretion to ensure corrective measures are put in place and improve
the working and the financial condition of the Company.
1. DEFINITIONS:
For the purpose of this Agreement, in addition to the terms defined in the
description of Parties to this Agreement, the recitals hereinabove and the text of
this Agreement, wherever used in this Agreement, unless repugnant to context or
meaning thereof, the following expressions shall have the following meanings:
(a) “Act” means the Companies Act, 1956 (1 of 1956) and as amended
from time to time and any successor legislation thereto, except
where otherwise expressly provided for.
(i) “Lenders” shall mean the Term Loan Lenders and Working
Capital Lenders as specified in Schedule 5 to the Investment
Agreement dated 1st February, 2007 and Investment Agreement
dated 26th March, 2007.
2. INTERPRETATION:
(e) The headings in this Agreement are inserted for convenience only
and shall not affect the interpretation of this Agreement in any
manner whatsoever;
(f) The Parties of the Second, Third, Fourth and Fifth Parts shall be
collectively referred to as the “Investors”;
(g) The Parties of the Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh,
Twelfth, Thirteenth and Fourteenth Parts shall be collectively
referred to as the “Promoters”.
The Promoters and the Company jointly and severally represent, warrant and
covenant as of this date as follows:
(a) The Promoters and the Company have requisite power and
authority to appoint a Chief Financial Officer in respect of the
Company and that they have requisite power and authority to make,
execute, deliver and perform all the terms and conditions as
envisaged under this Agreement herein and to consummate the
transaction as is contemplated herein.
(b) The execution, delivery, and performance by the Promoters and the
Company of this Agreement and the appointment of the Chief
Financial Officer as contemplated herein, will not (i) violate any
provisions of the Memorandum and Articles of Association or other
constituent documents, (ii) violate any provision of the Act or law or
any order of any court or government applicable to it.
(c) The Promoters and the Company represent warrant, covenant and
undertake with each of the Investors and the Shareholders that all
formalities in respect of seeking the requisite approvals from the
Board and/or the shareholders of the company and of filing the
requisite forms under the Act in respect of appointment of the Chief
Financial Officer for the Company and/or any other issues that may
arise under any law for the time being in force in respect thereof
8 M/s. Manilal Kher Ambalal & Co.,
PreliminaryDraft for Discussion Advocates, Solicitors & Notary
STRICTLY WITHOUT PREJUDICE AND ON CONDITION THAT THIS DRAFT OR THE
CONTENTS THEREOF SHALL NOT BE OFFERED AS EVIDENCE IN ANY PROCEEDINGS
WHATEVER AND NO CLAIM CAN BE BASED THEREON UNLESS AN ENGROSSMENT
PURSUANT HERETO IS DULY SIGNED BY ALL THE PARTIES.
It is agreed by and between the Promoters and the Company on one hand
and the Investors and the Shareholders on the other hand that a director
shall be nominated by the Investors and such director shall be appointed as
Chief Financial Officer for the Company with the powers as are vested in
him in terms of this Agreement and under any law for the time being in
force. It is further agreed that the company and the promoters will arrange
to procure the approvals of the Board of directors and of the shareholders,
as may be legally required for the appointment of the investors’ nominee
director as the Chief Financial Officer, as contemplated herein.
contract, trade agreement and the like shall be valid unless signed
by the Chief Financial Officer. It is agreed by the aforesaid Parties
that the Chief Financial Officer appointed shall have the power to
operate all the Bank Accounts of the Company and that no
payments over an amount of Rs.1,00,000/- shall be made by the
Company or the Promoters or any director or any other officer of
the Company on behalf of the Company without the prior written
sanction of the Chief Financial Officer and that no cheque for any
amount above Rs. 1,00,000/- shall be issued by the Company, any
director or any other officer on behalf of the Company without
obtaining the consent or the signature of the Chief Financial
Officer.
6. REMUNERATION:
It is mutually agreed by and between all the parties herein that the Chief
Financial Officer shall be paid a salary of Rs. 24,00,000/- (Rupees
Twenty-four Lakhs) per annum.
The Agreement arrived at herein by and between the Investors and the
Shareholders on one hand and the Promoters and the Company on the
other hand shall become effective and bind the aforesaid parties on the
date of execution hereof. It is agreed by the aforesaid parties that the
Agreement shall continue in full force and effect and shall bind the Parties
hereto.
8. MODIFICATION:
9. BREACH:
(a) It is agreed between the Parties hereto that failure to comply with
any of the terms and conditions stipulated in this Agreement shall
constitute an ‘Event of Default’ as have been referred to under the
earlier documents executed from time to time including the
Investment Agreement dated 1st February 2007, the Investment
Agreement dated 26th March 2007, Debenture Subscription
Agreement dated 1st February 2007, Debenture Subscription
Agreement dated 26th March, 2007, Debenture Trust deed dated 1 st
February, 2007 and the Debenture Trust Deed dated 26 th March,
2007.
10. ASSIGNMENT
This Agreement shall be binding upon each party’s successors and assigns
but, except as expressly provided herein, none of the rights of the parties
under this Agreement may be assigned or transferred.
11. MISCELLANEOUS
(b) No omission or delay on the party of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or privilege preclude
any other or further exercise thereof or any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative with, and not
exclusive of, any rights or remedies provided by law.
(d) This Agreement shall inure to the benefit of, and be binding upon, the
successors and permitted assigns of the parties.
(f) The Shareholders and the Company represented by its Board of Directors
confirm the terms and conditions as are recorded in this present
Agreement.
(g) The Promoters agree to arrange for alteration of the Articles of Association
of the Company, the delegations, resolutions, agreements or other
instruments made, passed or entered into thereunder, if necessary, to give
full effect to this Agreement.
12. SEVERABILITY:
The invalidity of any portion of this Agreement shall not affect the
remaining portions of this Agreement or any part thereof and this
Agreement shall be construed as if such invalid portion or portions had
not been inserted therein. The parties hereto will replace an invalid
provision or fill a gap with valid provisions which most closely
approximate the intent and economic effect of the invalid provision or, in
case of a gap, the parties’ presumable intentions.
14. NOTICES
To:
Address: _________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
To:
Address: __________________________
__________________________
IN WITNESS WHEREOF the Parties hereto have hereunto set and subscribed
their hands to this Agreement on the day and the year first hereinabove written.
2. __________________________ )
1. __________________________ )
2. __________________________ )