KUB HOLDINGS BHD.
AND
TATE INTEGRATED SYSTEMS, L.P.
JOINT VENTURE AGREEMENT
1
THIS AGREEMENT is made the 9th day of March, 1995
BETWEEN
KUB HOLDINGS BHD., a company incorporated in Malaysia and having its registered
office at 1st Floor, Bangunan UMNO, Jalan Tuanku Abdul Rahman, 50100 Kuala
Lumpur, Malaysia (hereinafter called "KUBH") of the one part;
AND
TATE INTEGRATED SYSTEMS, L.P., a limited partnership under the laws of the State
of Delaware and having its office at 11431 Cronhill Drive, Suite J, Owings
Mills, Maryland 21117, United States of America (hereinafter called "TIS") of
the other part.
ARTICLE I
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RECITALS
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(S) 1.1 Business of KUBH
----------------
KUBH is presently engaged in the business of education and training, information
technology, property development and plantation.
(S) 1.2 Business of TIS
---------------
TIS is engaged in the design, manufacture, licensing, marketing, sale and/or
servicing of software and complete computer-based automation systems which are
used for process monitoring and control.
(S) 1.3 Joint Venture
-------------
KUBH and TIS are desirous of creating a joint venture for the purpose of
manufacturing, marketing and selling TIS 4000 Systems (hereinbelow defined)
which use the TIS 4000 Technology (hereinbelow defined) in the ASEAN Territory
(hereinbelow defined) [hereinafter referred to as "the Project"].
(S) 1.4 Joint Venture Company
---------------------
In order to carry out the joint venture in relation to the Project, the Parties
hereto have agreed to form a joint venture company (hereinafter referred to as
"the JVC") to undertake such task and have agreed to enter into this Agreement
for the purpose of regulating their relationship with one another and certain
aspects of the affairs and their dealings in the JVC.
(S) 1.5 License Agreement
-----------------
By a written agreement dated the 9th day of March, 1995 (hereinafter referred to
as "the License Agreement") entered into between TIS of the one part and the JVC
of the other part, TIS agreed to grant to the JVC and the JVC agreed to accept
the exclusive license to use the TIS 4000 Technology in TIS 4000 Systems
manufactured, marketed and sold in the ASEAN Territory upon payment of a
licensing fee of United States Dollars Two Million and Five Hundred Thousand
(USD 2,500,000.00) only (hereinafter referred to as "the Licensing Fee") and
subject to the terms and conditions therein contained.
2
ARTICLE II
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DEFINITIONS/INTERPRETATION
--------------------------
(S) 2.1 Definitions
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In this Agreement the following words and expressions shall, where not
inconsistent with the context, have the following meanings respectively:
2.1.1 Agreed Proportions means the agreed proportions of the issued share
-------------------
capital of the JVC to be held by each of the Parties hereto and
referred to in (S)5.1.2 hereof.
2.1.2 ASEAN Territory means the following countries:
---------------
(a)Thailand;
(b)Malaysia;
(c)Indonesia;
(d)Philippines;
(e)Singapore;
(f)Brunei; and
(g)such other countries in Asia as TIS may approve in writing.
2.1.3 BLR means the base lending rate of Malayan Banking Berhad quoted
---
from time to time.
2.1.4 Board means the board of directors of the JVC or the directors
-----
present (personally or by their alternates) at any meeting of the
directors of the JVC duly convened and held.
2.1.5 Business Day means a day, other than Saturday, on which commercial
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banks are open for business in Kuala Lumpur, Malaysia for
transaction of business.
2.1.6 Companies Act means the Companies Act, 1965 of Malaysia and any
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statutory modification or reenactment thereof for the time being in
force.
2.1.7 Cut-Off Period means the period of three (3) months from the date of
--------------
this Agreement being the time for fulfilling the condition precedent
as stipulated in (S)4.1 of this Agreement subject to such extension
as the Parties thereto may agree.
2.1.8 Effective Date means the day falling within the Cut-Off Period when
--------------
the condition precedent stipulated in (S)4.1 hereof has been
fulfilled.
2.1.9 FIC means the Foreign Investment Committee established by the
---
Government of Malaysia to regulate the acquisition of assets,
mergers and take-overs in Malaysia in accordance with the
Government's Guidelines for the Regulations of Acquisitions of
Assets, Mergers and Take-overs.
2.1.10 Financial Year means the period of twelve (12) months commencing
--------------
from the 1st day of January and ending on the 31st day of December
of the same year.
2.1.11 JVC means the joint venture company set up by the Parties hereto and
---
referred to in (S)1.4 and (S)3.1 hereof.
3
2.1.12 KUBH means KUB HOLDINGS BHD., a company incorporated in Malaysia and
----
having its registered office at 1st Floor, Bangunan UMNO, Jalan
Tuanku Abdul Rahman, 50100 Kuala Lumpur, Malaysia and shall, where
the context so admits, include its successors in title.
2.1.13 License means the exclusive license to use the TIS 4000 Technology
-------
in TIS 4000 Systems manufactured, marketed and sold in the ASEAN
Territory which TIS has agreed to grant to the JVC pursuant to the
License Agreement.
2.1.14 License Agreement means the written agreement dated the 9th day of
-----------------
March, 1995 entered into between TIS of the one part and the JVC of
the other part whereby TIS granted to the JVC the License upon the
terms and conditions therein contained.
2.1.15 Licensing Fee means the sum of United States Dollars Two Million and
-------------
Five Hundred Thousand (USD 2,500,000.00) only and referred to in
(S)1.5 hereof.
2.1.16 Malaysia means the Federation of Malaysia.
--------
2.1.17 Malaysian Laws means all the laws, regulations, orders and decrees
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of Malaysia, whether Federal or State, including those to be enacted
during the term of this Agreement.
2.1.18 Memorandum and Articles of Association means the Memorandum of
--------------------------------------
Association and the Articles of Association to be adopted by the
JVC.
2.1.19 Parties means KUBH and TIS, collectively and individually, "Party".
-------
2.1.20 Project means the joint venture for the purpose of manufacturing,
-------
marketing and selling TIS 4000 Systems which use the TIS 4000
Technology in the ASEAN Territory.
2.1.21 Relevant Authorities means the relevant government ministries
--------------------
whether federal or state and other governmental statutory bodies of
Malaysia.
2.1.22 Ringgit Malaysia or RM means the lawful currency for the time being
----------------------
and from time to time of Malaysia.
2.1.23 Subsidiaries means as defined under (S)5 of the Companies Act.
------------
2.1.24 Supermajority means a simple majority of the Directors of the JVC
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present (personally or by their alternate) and entitled to vote on
matters that come before any meeting of the Board; provided,
however, that such majority shall include the vote of at least one
(1) TIS Director and KUBH Director in order to constitute a
Supermajority.
2.1.25 TIS means TATE INTEGRATED SYSTEMS, L.P., a limited partnership under
the laws of the State of Delaware and having its office at 11431
Cronhill Drive, Suite J,
4
Owings Mills, Maryland 21117, United States of America and shall,
where the context so admits, include its successors in title.
2.1.26 TIS 4000 System or TIS 4000 Systems means the computer based
-----------------------------------
automation systems for process monitoring and control which use the
TIS 4000 Technology, in all forms and applications.
2.1.27 TIS 4000 Technology means TIS developed software including packages
-------------------
such as DataVu, TrendVu, SNLVu, AlarmVu, ReportVu, TankFarmTools and
other software packages which may be developed by TIS in the future
which are proprietary to TIS and any modifications, improvements and
enhancements to any of the foregoing made by TIS, which, in TIS's
and KUBH's mutual opinion expressed in writing, is or are necessary
in the manufacture, marketing and sale of TIS 4000 Systems.
2.1.28 United States Dollars or USD means the lawful currency for the time
----------------------------
being and from time to time of United States of America.
(S) 2.2 Interpretation
--------------
2.2.1 Words denoting the singular number only includes the plural number
and vice versa.
2.2.2 Words denoting the neuter gender shall include the masculine and
feminine genders and vice versa.
2.2.3 Headings of Articles and Sections are for ease of reference only and
shall be ignored in interpreting the provisions hereof. References
to Articles and Sections are, except where the context otherwise
requires, references to Articles and Sections hereof.
2.2.4 References to Articles and Sections are to be construed as
references to Articles and Sections of this Agreement.
2.2.5 References to the provisions of any legislation includes a reference
to any statutory modification and re-enactment thereof and any
regulations thereunder.
ARTICLE III
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FORMATION OF JVcC
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(S) 3.1 Name of JVC
-----------
KUBH shall use its best efforts to (i) incorporate the JVC registered in
Malaysia under the Companies Act, (ii) maintain the corporate existence of the
JVC in Malaysia and (iii) obtain FIC approval of the transactions contemplated
by this Agreement and the License Agreement on or before the expiration of the
Cut-Off Period. The name of the proposed JVC shall be KUB-TIS CONTROLS SDN. BHD.
or such other name as may be approved by the Registrar of Companies and agreed
to by the Parties hereto. KUBH will incur the registration fee for the JVC in
the first instance and will be reimbursed by the JVC after the JVC has been
funded by the Parties hereto, in accordance with (S)11.3 hereof.
(S) 3.2 Registered Office of JVC
------------------------
5
The registered office of the JVC shall be at 1st Floor, Bangunan UMNO, Jalan
Tuanku Abdul Rahman, 50100 Kuala Lumpur, Malaysia or such other place as the
Parties hereto may agree.
(S) 3.3 Main Object of JVC
------------------
The main object of the JVC shall be to implement the Project and to undertake
related activities.
(S) 3.4 Memorandum and Articles of Association of the JVC
-------------------------------------------------
3.4.1 The Memorandum and Articles of Association of the JVC shall reflect
the understanding between the Parties hereto and as contained
herein.
3.4.2 The Memorandum and Articles of Association of the proposed JVC shall
be unanimously agreed to by the Parties hereto. These documents may
be amended from time to time by written agreement between the
Parties hereto, subject to the provisions of the Companies Act. Any
understanding herein not reflected in the Memorandum and Articles of
Association of the JVC shall nevertheless be binding on the Parties
hereto. In the event of any conflict between any of the provisions
of this Agreement and the Memorandum and Articles of Association,
the former shall prevail.
ARTICLE IV
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CONDITION PRECEDENT
-------------------
(S) 4.1 Condition Precedent
-------------------
This Agreement is conditional upon the approval of the FIC being obtained within
the Cut-Off Period.
(S) 4.2 Effective Date
--------------
The Parties' obligations to subscribe for shares as provided in (S)5.2.2 hereof
and all their obligations and rights thereafter as shareholders in the JVC and
Parties to the joint venture or otherwise arising therefrom, shall take effect
from (and including) the Effective Date.
(S) 4.3 Application for Approval
------------------------
As soon as practicable after the execution of this Agreement, KUBH shall take
the necessary steps to apply for the approval of the FIC for the joint venture
under this Agreement. The Parties hereto shall exercise respectively, their best
endeavors to assist one another in the aforesaid application.
(S) 4.4 Notification
------------
Upon the approval of the FIC being refused or given or granted upon the
fulfillment of any conditions therein referred to, the Party being notified of
such refusal or given such approval or granted such approval subject to the
fulfillment of any conditions shall immediately notify the other Party in
writing and, where relevant, shall forward a copy thereof to the other Party.
(S) 4.5 The Option Period
-----------------
In the event that a condition is imposed in respect of the approval of the FIC
which affects any of the Parties hereto, that Party shall have the option, to be
exercised within sixty (60) days from the date on which the condition is made
known to such Party (hereinafter referred to as "the Option Period") by written
notice in writing to the other Party, to reject such condition, whereupon the
approval in respect of which the said condition is imposed shall be deemed not
to have been obtained for the purpose hereof. If such option is not exercised
within the Option Period such
6
approval of the FIC in respect of which the said condition is imposed shall be
deemed to have been obtained for the purpose hereof and the Effective Date shall
be deemed to occur upon the expiration of such Option Period.
(S) 4.6 Cut-Off Period
--------------
In the event that the approval of the FIC is not obtained or fulfilled on the
expiry of the Cut-Off Period (i) this Agreement shall be deemed to have lapsed
and be of no further force and effect and the Parties hereto shall not have any
claim against each other and (ii) each Party shall bear its own costs and
expenses incurred prior to such date in connection with the transactions
contemplated hereby.
ARTICLE V
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SHARE CAPITAL AND ADDITIONAL FUNDING
------------------------------------
(S) 5.1 Authorized Capital
------------------
5.1.1 The initial authorized capital of the JVC shall be Ringgit Malaysia
Five Hundred Thousand (RM 500,000.00) only divided into Five Hundred
Thousand (500,000) ordinary shares of Ringgit Malaysia One (RM 1.00)
each at par value and which shall be increased to Ringgit Malaysia
Ten Million (RM 10,000,000.00) only within one (1) week from the
Effective Date.
5.1.2 The Parties hereto have agreed to subscribe for the following
proportions (hereinafter referred to as "the Agreed Proportions") of
the issued share capital of the JVC:
5.1.2.1 KUBH - 87.1%.
5.1.2.2 TIS - 12.9%.
(S) 5.2 Paid Up Capital
---------------
5.2.1 The initial paid up capital of the JVC shall be Ringgit Malaysia Two
(RM 2.00) only which will be held by the nominees of KUBH.
5.2.2 The paid up capital of the JVC shall be increased to Ringgit
Malaysia Eight Million and Sixty Thousand (RM 8,060,000.00) only by
the allotment and issue of Eight Million Fifty Nine Thousand Nine
Hundred and Ninety Eight (8,059,998) ordinary shares of Ringgit
Malaysia One (RM 1.00) each at par to the Parties hereto on or
before two (2) Business Days after the occurrence of the Effective
Date in the following proportions:
KUBH - 7,019,998 ordinary shares.
TIS - 1,040,000 ordinary shares.
5.2.3 In addition to the initial subscription as mentioned in (S)5.2.2
hereof, the Parties hereto agree to subscribe to any further issue
of share capital of the JVC so as to maintain the Agreed Proportions
referred to in (S)5.1.2 hereof. Subject to (S)5.2.5 hereof, the
Parties hereto hereby agree that except with the unanimous agreement
of the Parties hereto, (a) the Agreed Proportions shall not be
changed and accordingly, no new shares in the JVC shall be issued
and allotted to the Parties hereto (or any of them) unless the
Agreed Proportions shall be maintained, and (b) no new shares in the
JVC shall be issued or allotted to any third party.
7
5.2.4 The JVC shall be responsible and at its own costs and expenses,
procure whatever funds as may be necessary for it to conduct its
business operations over and above its paid up capital and retained
earnings.
5.2.5 Notwithstanding the provision of (S)5.1.2 hereof, TIS shall be
entitled within one (1) year from the Effective Date to increase its
shareholding to forty per centum (40%) of the issued and paid up
capital of the JVC by subscribing for further ordinary shares in the
JVC at par value subject to the prior written approval of the FIC.
(S) 5.3 Financing
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5.3.1 Subject to the provisions of (S)5.3.3 hereof, if at any time, or
from time to time, a Supermajority of the Board determines that
additional funds are reasonably necessary for the continued
operation of the JVC, the Parties shall cause the JVC to borrow the
required additional funds from any willing third party lender, on
such terms and conditions as are approved by a Supermajority of the
Board. If a Supermajority of the Board determines (i) that funds are
not reasonably available to the JVC as described above in the
immediately preceding sentence or (ii) that additional capital
contributions are reasonably necessary to the continued operation of
the JVC then each Party agrees to contribute in accordance with the
Agreed Proportions such additional funds or capital contributions as
may be necessary for the sound operation of the JVC as determined by
a Supermajority of the Board from time to time. If either Party
fails to contribute its full share toward such additional
capitalization of the JVC, then the other Party may advance such
funds for the defaulting Party. Any such funds so advanced shall, at
the time the JVC distributes cash to the Parties, be repaid from the
share of the defaulting Party, together with interest at an amount
equal to the sum of the BLR of Malayan Banking Berhad on the date of
such loan plus three per centum (3%) per annum, from the date of the
advance. If the Party making such advances has not been repaid such
advance amount at the time of termination of this Agreement, then
the defaulting Party shall be obligated to pay such advance amount,
together with interest accrued and unpaid to the date of payment at
the rate described in the immediately preceding sentence, to the
other Party upon termination of this Agreement.
5.3.2 None of the Parties hereto undertakes to provide any loan or share
capital to the JVC nor to give any guarantee or indemnity in respect
of any of the JVC's liabilities or obligations.
5.3.3 The Parties hereto agree that to the extent that any of them suffers
any loss in relation to loans made or credit given to the JVC
pursuant to this Agreement (or with the written consent of the other
Party hereto) then they shall make contributions to each other to
the intent and effect that such losses are borne in the Agreed
Proportions.
(S) 5.4 Guarantees and Indemnities
--------------------------
5.4.1 The Parties hereto agree that; subject to Sections 5.4.2 and 5.4.3
hereof, the aggregate amount of any actual liability incurred by
them pursuant to any joint and several guarantee or indemnity given
by them to any third party in respect of any liabilities or
obligations of the JVC or pursuant to any guarantee or indemnity
(whether several or joint and several) given in respect of such
obligations or liabilities
8
by any of them with the written consent of the other shall be borne
by them in the Agreed Proportions and each shall indemnify and keep
indemnified the other accordingly which indemnity shall include
costs incurred by the other Party.
5.4.2 If any liability incurred as aforesaid is solely attributable to the
act or default of one of the Parties hereto then, notwithstanding
(S)5.4.1 hereof, the whole of such liability shall be borne by such
Party hereto who shall indemnify and keep indemnified the other
Party accordingly.
5.4.3 In the event that a Party ("Selling Party") hereto disposes of all
its shares to the other Party ("Acquiring Party") hereto then the
Acquiring Party will use all reasonable endeavors to obtain the
release of that the Selling Party from any guarantees and
indemnities which he may have given pursuant to this Agreement or
with the written consent of the both Parties hereto in respect of
any of the liabilities or obligations of the JVC to third parties
and pending the obtaining of such release shall keep that the
Selling Party fully and effectively indemnified against any
liability pursuant to any such guarantees or indemnities.
ARTICLE VI
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INDEMNITY
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(S) 6.1 Indemnity by KUBH
-----------------
KUBH shall indemnity, defend and hold harmless TIS and TIS's directors,
officers, employees and agents from and against all claims, actions or causes of
action, suits and proceedings and all loss, assessments, liability, damages,
costs and expenses incurred in connection therewith (including reasonable
attorney's fees) for which TIS or its directors, officers, employees or agents
may become liable or incur or be compelled to pay, in each case, to the extent
caused, (i) by a breach of this Agreement by KUBH, or (ii) by the willful
misconduct or negligent acts or omissions of KUBH, their agents, contractors or
employees, in connection with or as a result of this Agreement or the
performance of its obligations hereunder, unless, in each case, such claim
results from the willful misconduct or negligent acts or omissions of TIS.
(S) 6.2 Indemnity by TIS
----------------
TIS shall indemnify, defend and hold harmless KUBH and KUBH's directors,
officers, employees and agents from and against all claims, actions or causes of
action, suits and proceedings and all loss, assessments, liability, damages,
costs and expenses incurred in connection therewith (including reasonable
attorney's fees) for which KUBH or its directors, officers, employees or agents
may become liable or incur or be compelled to pay, in each case, to the extent
caused, (i) by a breach of this Agreement by TIS, or (ii) by the willful
misconduct or negligent acts or omissions of TIS, their agents, contractors or
employees, in connection with or as a result of this Agreement or the
performance of its obligations hereunder, unless, in each case, such claim
results from the willful misconduct or negligent acts or omissions of KUBH.
(S) 6.3 Survival of indemnity
---------------------
The indemnifications provided in this Article VI, shall survive termination of
this Agreement.
ARTICLE VII
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MANAGEMENT OF JVC AND BOARD OF DIRECTORS
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9
(S)7.1 Number of Directors
-------------------
7.1.1 Unless otherwise determined by a general meeting of the JVC, the
Board shall comprise of not less than two (2) but not more than
ten (10) members (excluding Alternate Directors).
7.1.2 The initial composition of the Board shall be up to seven (7)
Directors to be nominated by the Parties hereto in the following
proportion:
7.1.2.1 KUBH - up to five (5) only
("KUBH Directors").
7.1.2.2 TIS - up to two (2) only
("TIS Directors")
7.1.3 In the event of any changes to the Agreed Proportions as stated in
(S)5.1.2 hereof then the number of Directors shall be revised
accordingly in proportion to their respective shareholdings in the
JVC.
7.1.4 The Directors shall not be compensated for their services as
members of the Board. The JVC shall be, however, responsible for
all reasonable out-of-pocket expenses as approved by the Board
incurred by members of the Board in attending regular or special
meetings of the Board.
(S)7.2 Qualification of Directors
--------------------------
Subject to the fulfillment of all the requirements of the Companies Act the
Directors shall not be required to hold any qualification shares.
(S)7.3 Chairman
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The Chairman of the Board and the Chairman of all Board meetings of the JVC
shall be elected by the Board. The Chairman shall have a casting vote.
(S)7.4 Change of Nominee Directors
---------------------------
7.4.1 The Parties hereto shall have the option to renominate their
retiring Directors, or suitable replacement thereof, and the
appointments to be made by the shareholders shall be in accordance
with the recommendations of these Parties in respect of Directors
they are entitled to nominate.
7.4.2 The Parties hereto shall respectively have the right to remove
their respective nominee Directors so appointed and to appoint
others in their place. Appointment or removal of nominee Directors
shall be effected in writing, or by telex or telefax addressed to
the Chairman of the Board of the JVC by KUBH or TIS, as the case
may be and the same shall take effect upon being received by the
JVC in accordance with the procedures laid down in the Companies
Act. Neither Party hereto shall have the right, and shall not sign,
do or execute any document act or thing, to remove the nominee
Directors of or representing the other Party hereto.
(S)7.5 Board Meetings
--------------
7.5.1 Unless otherwise agreed, written notice of every meeting of the
Board shall be received by every Director at least fourteen (14)
days in advance thereof. However,
10
if an emergency meeting of the Board convenes at the request of the
Chairman of the Board or the Managing Director, the notice period
to every Director shall be at least ten (10) days.
7.5.2 Every notice convening a meeting of the Board shall set out the
agenda of the business to be transacted. No item of business shall
be transacted at such meeting, unless the same has been stated in
the said notice convening the meeting. PROVIDED that:
7.5.2.1 additional item(s) of business may be inserted in the
agenda of the business to the transacted if notice of
such additional item is given to all the Directors at
least seven (7) days before meeting of the Board; or
7.5.2.2 with the unanimous consent of all the Directors present,
any item of business not included in the agenda may be
transacted at the meeting.
7.5.3 The quorum for a meeting of the Board shall be three (3) Directors
who are present in person or by their alternate. PROVIDED further
that no quorum for a meeting of the Board shall be constituted and
no such meeting shall proceed to transact any business unless at
least one (1) Director (or his alternate) representing each of the
Parties hereto are present at such meeting. If there is no quorum
for a duly convened meeting of the Board of which notice has been
given to all the Directors, then such meeting shall stand adjourned
to the same day in the next week at the same time and place or to
such other day and at such other time and place as the majority of
the directors for the time being shall decide, and at such
adjourned meeting, the quorum shall be any three (3) Directors.
(S)7.6 Circular Resolution
-------------------
A resolution in writing, signed by a Supermajority of the Directors for the time
being entitled to receive notice of a meeting of the Directors, shall be as
valid and effective as if it had been passed at a meeting of the Directors duly
convened and held. Any such resolution may consist of several documents in like
form, each signed by one or more Directors.
(S)7.7 Decision of the Board
---------------------
All the important matters of business of the JVC shall be decided by the Board
of the JVC. In the meetings of the Board, normally all the matters should be
decided unanimously. However, in case of difference of opinion, matters may be
decided by majority of the Directors present in the meeting except for those
matters enumerated below which no resolution shall be passed or approved or
treated as passed, approved or effective unless with the approval of at least
one (1) Director representing each of the Parties hereto:
7.7.1 acquisition by the JVC of any land, or other improved or unimproved
immovable property, or any improvements thereon or interest
therein, in each case, having an individual value of Ringgit
Malaysia Six Hundred and Twenty Five Thousand (RM 625,000.00) only
or more;
7.7.2 approval of operating budgets for the JVC (which shall be
further subject to approval by the Board of Directors of KUBH);
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7.7.3 making of any expenditure or the incurrence of any obligation
during any Financial Year which, when added to other expenditures
made or obligations incurred for such Financial Year, exceeds by
more than ten per centum (10%) the amount provided for such
expenditure in the annual budget approved by the Board for such
Financial Year;
7.7.4 entering into by the JVC of any management, development, technical
services, consulting, advisory, marketing or similar contract or
agreement that, in each case, calls for annual payments of Ringgit
Malaysia One Hundred and Twenty Five Thousand (RM 125,000.00) only
or more, or any termination or modification of such contract or
agreement;
7.7.5 any modification of the insurance required to be maintained by the
JVC pursuant to (S)10.1.3 hereof if such modification will
materially increase the cost of such insurance;
7.7.6 hiring by the JVC of any key employee;
7.7.7 approval of marketing, advertising and other business plans of the
JVC;
7.7.8 incurrence of any long-term debt by the JVC;
7.7.9 determinations with respect to additional capitalization or
additional funds of the JVC in accordance with and as more
particularly described in (S)5.3.1 hereof;
7.7.10 amendment, revision, modification or deletion of any of the
provisions of the Memorandum and Articles of Association of the
JVC;
7.7.11 approval of any plan to list the shares of the JVC on any stock
exchange and for sale to the public; and
7.7.12 the making of any other decision or taking of any other action
which, by any provision of this Agreement, materially adversely
effects the JVC or the assets or operations thereof.
(S)7.8 Management Committee
--------------------
7.8.1 The management committee of the JVC shall comprise the following
persons each of whom shall be appointed by a Supermajority of the
Board:
7.8.1.1 the Managing Director;
7.8.1.2 the General Manager (if-any);
7.8.1.3 the Financial Controller or Accountant; and
7.8.1.4 such other persons as may be approved by the Board.
7.8.2 The Managing Director shall be responsible for the general
supervision of the daily affairs of the JVC and shall oversee all
aspects of the development of the business of
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the JVC, and, in general, shall perform all duties incident to the
office of the Managing Director. The Managing Director shall have
such authority as may from time to time be delegated to him by a
Supermajority of the Board.
7.8.3 The Financial Controller or the Accountant shall have custody of
all funds and of all financial records of the JVC.
7.8.4 The Managing Director, the General Manager, the Financial
Controller or Accountant and other officers, employees and agents
shall be remunerated in line with KUB group policy.
7.8.5 Notwithstanding any other provision of this Agreement to the
contrary, (i) no Affiliate of either Party may act as an officer,
employee, agent or contractor of the JVC and (ii) no person who is
related to any officer, director or employee of KUBH or TIS may
serve as an officer or director of the JVC, in each case, without
Supermajority approval of the Board; provided, however, that any of
the current officers and directors of KUBH or TIS may serve as
officers and/or directors of the JVC without the approval of the
Board.
7.8.6 The management committee of the JVC shall hold meetings at such
times as the members of the management committee deem appropriate;
provided, however, that the management committee shall meet at
least once every three (3) months to review and discuss matters
relevant to the operation and business affairs of the JVC. The
Managing Director shall record and maintain minutes of each
management committee meeting and shall provide copies of each set
of minutes, signed by the Managing Director, to each of the Parties
hereto within fourteen (14) days of each management committee
meeting.
(S)7.9 Books and Records
-----------------
7.9.1 At all times during the term of the JVC, the JVC shall keep or
cause to be kept accurate and complete books of account in which
shall be entered fully and accurately the transactions of the JVC,
and all of said books shall at all times be maintained at the
principal office of the JVC. The JVC's books of account shall be
open to the inspection and examination of Parties or their
respective representatives during all reasonable business hours.
The JVC's Financial Year shall be the twelve (12) months ending
31st day of December.
7.9.2 The JVC shall comply with all applicable tax laws and regulations
and shall file all tax information or tax returns required to be
filed by the JVC and/or the Parties with the appropriate taxing
authorities within the time periods established by the laws and
regulations of each relevant jurisdiction; provided, however, that
all tax information and tax returns shall be subject to the prior
review and approval of the Parties. The JVC's independent
accountants shall prepare such tax returns, and the costs of
preparing and filing such tax returns shall be borne by the JVC.
7.9.3 All books and records of the JVC shall be maintained by the
accounts department of the JVC (i) in the English language and (ii)
in accordance with generally accepted accounting principles. All
agreements entered into by the JVC shall be written in the English
language.
13
ARTICLE VIII
------------
TRANSFER AND TRANSMISSION OF SHARES
-----------------------------------
(S)8.1 Right of First Refusal
----------------------
8.1.1 No Party hereto shall, without the prior written consent of the
other Party, sell, transfer, assign, contribute, mortgage,
hypothecate or otherwise encumber, transfer or permit to be
transferred, either voluntarily or involuntarily, or otherwise
dispose its equity shares or any part thereof without first
offering to sell the same to the other Party or its nominee in
accordance with (S)8.1.3 hereof. PROVIDED that no such consent of
the other Party shall be required in case the said shares are to be
transferred, sold or otherwise disposed of to any of the
Subsidiaries of the Party concerned.
8.1.2 Any transfer or sale referred to in (S)8.1.1 hereof shall be
effected only on the condition that the purchaser or the transferee
agrees to abide by and observe all the terms and conditions of this
Agreement and such purchaser or transferee shall enter into an
agreement incorporating the terms and conditions and covenants
herein contained.
8.1.3 Any offer of sale for any of the shares subject to the right of
first refusal provided for in Sections 8.1.1 and 8.1.2 hereof shall
be made in the following manner:
8.1.3.1 such offer shall be made in writing addressed to the
other Party for which it is intended;
8.1.3.2 such offer shall indicate, among other things the price
at which the shares are offered for sale. The Parties
hereto shall within thirty (30) days from the date of
such offer negotiate and agree upon the price at which
the shares will be sold. In default of agreement between
the Parties the price shall be a fair price determined by
a firm of Accountants of international repute, (to be
unanimously agreed upon by the Parties hereto) within
sixty (60) days from the date of such offer and on the
basis of accepted standards, whose decision shall be
final and binding;
8.1.3.3 if any such offer shall not be accepted by the other
Party hereto in writing within a period of ninety (90)
days from the date of receipt thereof or the date of
fixation of price by the abovesaid firm of Accountants as
aforesaid; as the case may be, then in such case the
offer shall be deemed to have been declined and the Party
by whom the offer is made shall thereafter be free to
sell the shares to any third parties but not on terms
relating to price and payment more favourable than that
previously offered to the other Party hereto;
8.1.3.4 in the event of any such offer being accepted, completion
of the sale and purchase of the shares comprised therein
shall take place within such time as the Parties hereto
may agree or in default of agreement within not more than
fifteen (15) days after the date of acceptance (excluding
the time taken for obtaining the permission of any
Government authority, if applicable);
14
8.1.3.5 at such completion the vendor shall deliver to the
purchasers:
8.1.3.5.1 the certificates for the shares to be sold;
and
8.1.3.5.2 transfer forms of such shares duly executed
by vendor. Before such completion, the
purchasers shall obtain such Government
consent and permission as may be required,
to enable the shares to be sold and
transferred to the purchasers and deliver to
the vendor in exchange thereof a Bankers
Draft or other method acceptable to the
Parties for the amount of the purchase price
payable.
In this clause the expression "vendor" means any of the
Parties hereto by which any offer for sale of shares is
made pursuant to the foregoing provisions and the
expression "the purchaser or transferee" shall mean any
of the Parties hereto or such third party(ies) who agreed
to purchase the shares from vendor.
8.1.4 An offer made by one (1) Party to the other Party shall be open for
acceptance only as to the whole of the shares so offered and not
any lesser number thereof, unless the offeror agrees at its
discretion.
8.1.5 The Parties hereby agree that the Board shall not be entitled to
refuse to register any transfer of shares by a Party hereto to a
third party if (a) that Party has, in connection with such
transfer, complied with the foregoing provisions prior to the sale
and transfer of shares to that third party, (b) that third party
has delivered to the Board its written agreement as referred to
in (S)8.1.2 hereof, and (c) the transferor and transferee have
furnished to the Board evidence that the price paid by the third
party and the terms of payment thereof are not more favourable than
the price and terms of payment offered by the transferor to the
other Party.
(S)8.2 Transfer to Successors in Title
-------------------------------
Any of the Parties hereto shall be entitled to transfer its shares in the JVC to
any of its successors by amalgamation, merger or to the purchaser of all or
substantially all of its property, business and assets of the Party subject to
the condition that the transferee shall agree to be bound by all the terms and
conditions herein contained. A transfer under this Section will not be covered
by the restriction and conditions contained in (S)8.1 hereof.
(S)8.3 Covenant not to create lien
---------------------------
A Party hereto shall not create a general lien over the shares owned by them in
the JVC except with the prior consent of the other Party hereto.
15
ARTICLE IX
----------
MUTUAL COVENANT8
----------------
(S)9.1 Exercise of powers
------------------
9.1.1 Except as the Parties hereto may otherwise agree in writing or save
as otherwise provided or contemplated in this Agreement the Parties
hereto shall exercise their powers in relation to the JVC so as to
ensure that:
9.1.1.1 the JVC carries on and conducts it business and affairs
in a proper and efficient manner and for its own
benefit;
9.1.1.2 the JVC transacts all its business on arm's length
terms;
9.1.1.3 the JVC shall not enter into any agreement or
arrangement restricting its competitive freedom to
provide and take goods and services by such means and
from and to such persons as it may think fit;
9.1.1.4 all business of the JVC, other than routine day to day
business, shall be undertaken and transacted by the
directors;
9.1.1.5 the business of the Company shall be carried on
pursuant to policies laid down from time to time by the
Board;
9.1.1.6 the JVC shall maintain with a well established and
reputable insurer adequate insurance against all risks
usually insured against by companies carrying on the
same or a similar business and (without prejudice to
the generality of the foregoing) for the full
replacement or reinstatement value of all its assets of
an insurable nature;
9.1.1.7 the JVC allots and issues its shares and other
securities at the best price reasonably obtainable in
the circumstances;
9.1.1.8 the JVC shall not acquire, dispose, hire, lease,
license or receive licenses of any assets, goods,
rights or services otherwise than at the best price
reasonably obtainable in the circumstances;
9.1.1.9 the JVC shall keep books of account and therein make
true and complete entries of all its dealings and
transactions of and in relation to its business;
9.1.1.10 the JVC shall provide each Parties hereto within two
(2) weeks of the end of each calendar month with
unaudited management accounts for such month in a form,
acceptable to the Parties hereto, rolling cash flow
forecasts for a period of twelve (12) months from the
end of each month and with details of its order book at
such date;
9.1.1.11 the JVC shall prepare its accounts on an historical cost
basis or any other basis agreed by the Parties hereto
and shall adopt such accounting policies as may from
time to time be generally accepted in Malaysia;
16
9.1.1.12 the JVC shall prepare such accounts in respect of each
accounting reference period as are required by statute
and procure that such accounts are audited as soon as
practicable and in any event not later than three (3)
months after the end of the relevant accounting
reference period;
9.1.1.13 each accounting reference period of the Company shall be
a period of twelve (12) calendar months;
9.1.1.14 the JVC shall keep each of the Parties hereto fully
informed as to all its financial and business affairs;
and
9.1.1.15 if the JVC requires any approval, consent or licence for
the carrying on of its business in the places and in the
manner in which it is for the time being carried on or
proposed to be carried on the JVC will use its best
endeavours to maintain the same in full force and
effect.
9.1.2 Each Party hereto shall use all reasonable and proper means in its
power to maintain, improve and extend the business of the JVC and
its subsidiaries (if any) and to further the reputation and
interests of the JVC and its subsidiaries (if any).
9.1.3 Where any of the Parties hereto is required under this Agreement to
exercise its powers in relation to the JVC to procure a particular
matter or thing, such obligation shall be deemed to include an
obligation to exercise its powers both as a shareholder and as a
director (where applicable) of the JVC and to procure that any
director appointed by it (whether alone or jointly with any other
person) shall procure such matter or thing.
(S)9.2. Further assurance
-----------------
The Parties hereto shall use their respective reasonable endeavours to procure
that any necessary third parties shall, do, execute and perform all such further
deeds, documents, assurances, acts and things as any of the Parties hereto may
reasonably require by notice in writing to the others to carry the provisions of
this Agreement and the Articles of Association into full force and effect.
(S)9.3 Parties bound
-------------
9.3.1 The Parties hereto shall cause the JVC to observe and comply with
the terms and conditions of this Agreement insofar as the same
relate to the JVC and to act in all respects as contemplated by
this Agreement.
9.3.2 The Parties hereto undertake with each other to exercise their
powers and carry out their obligations in relation to the JVC so as
to ensure that the JVC fully and promptly observes, performs and
complies with its obligations under this Agreement.
9.3.3 Each of the Parties hereto undertakes with each other that whilst
it remains a party to this Agreement it will not (except as
expressly provided for in this Agreement) agree to cast any of the
voting rights exercisable in respect of any of the shares held by
it in accordance with the directions, or subject to the consent of,
any other person (including another party hereto).
17
(S)9.4 Cooperation
-----------
Each of the Parties hereto hereby undertakes with one another as follows:
9.4.1 to do all things reasonably within its power which are necessary or
desirable to give effect to the spirit and intent of this
Agreement;
9.4.2 in the event that the JVC experiences difficulties and problems in
its functioning and/or operations and the like, the Parties hereto
will discuss and use their best efforts to find a solution in the
best interests of the JVC.
(S)9.5 Dividend policy
---------------
If in respect of any accounting period a Supermajority of the Board determines
that the JVC has profits available for distributions the Parties hereto shall
procure that in the absence of agreement to the contrary at least ten per centum
(10%) of the same are distributed by way of cash dividends by the JVC within
four (4) months after the end of such period. In deciding whether in respect of
any accounting period the JVC had profits available for distributions the
Parties hereto shall procure that the Auditors shall certify whether such
profits are available or not and the amount thereof (if any). In giving such
certificate the Auditors shall act as experts and not arbitrators and their
determination shall be binding on the Parties hereto.
(S)9.6 Auditors
--------
The Auditors of the JVC shall be Accountants of repute as may be agreed to by
the Parties hereto to be appointed in accordance with the relevant provisions of
the Companies Act.
(S)9.7 Non-competition
---------------
9.7.1 During the term of this Agreement and for a period of two (2) years
following the termination of this Agreement, each Party hereto
agrees that without the prior written consent of the other Party
hereto (which consent may be withheld in such other Party' s sole
discretion), such Party shall not, for its own account or jointly
with another, directly or indirectly, on behalf of any individual,
partnership, corporation, limited liability company or other legal
entity, as principal or agent or otherwise engage in, consult with
or own, control or manage or otherwise participate in the
ownership, control or management of a business manufacturing,
marketing or selling computer- based automation systems for process
monitoring and control in the ASEAN Territory; provided that such
restriction shall not apply to KUBH doing such business in Malaysia
only.
9.7.2 Each Party hereto agrees for itself and its related persons that
none of them shall utilize the name "KUB-TIS CONTROLS SDN. BHD." or
any name similar thereto for any purpose in the ASEAN Territory
during the term of this Agreement. Upon termination of this
Agreement:
9.7.2.1 KUBH shall not use any name which contains any reference
to "TIS"; and
9.7.2.2 TIS shall not use any name which contains any reference
to "KUB".
18
9.7.3 Notwithstanding anything to the contrary set forth above, in the event
that any Party hereto shall purchase the shares of the other Party in
the JVC, such Party shall not be bound by this (S)9.7.
9.7.4 Notwithstanding the foregoing, TIS shall have the right to purchase
TIS 4000 Systems, software or equipment, at competitively mutually
negotiated prices not to exceed published prices for such TIS 4000
Systems, software or equipment at the time, manufactured by the JVC
for sale by TIS in areas outside the ASEAN Territory.
ARTICLE X
---------
COVENANTS BY KUBH
-----------------
(S) 10.1 Covenants by KUBH
-----------------
KUBH shall use its best endeavours, at the expense of the JVC, to:
10.1.1 establish and maintain all governmental contacts in the countries of
the ASEAN Territory and in such other locations as may be required to
obtain the permits, licenses and other authorisations and privileges
necessary or desirable for conducting the business of the JVC, subject
to the approval of TIS which approval shall not be unreasonably
withheld, and shall take all necessary action to ensure the continuing
compliance of the JVC with applicable law;
10.1.2 procure on behalf of the JVC liability insurance that satisfied
applicable requirements of the laws of Malaysia and provides full
coverage for injury or death to a person or persons or loss or damage
to property occurring in or about the JVC premises or in any manner
connected therewith, in an amount to be decided by the Board having
regard to the applicable Malaysian Laws;
10.1.3 engage an independent certified public accounting firm on behalf of
the JVC to review the JVC's books of account on an annual basis;
10.1.4 assist TIS with logistical matters, including, but not limited to,
obtaining telemarketers, translators, clerical personnel, materials,
supplies, printing and such other goods and services as TIS may
request from time to time;
10.1.5 provide liaison with all governmental authorities, including police,
fire and security officials, necessary to insure the safety of the
business of the JVC;
10.1.6 to expedite the securing of appropriate and adequate land either by
purchase or lease or rental of suitable premises for the setting up of
the JVC's office and provide facilities, furnishings, office
equipment, telephone and facsimile services to the JVC; and
10.1.7 in recruiting suitable and qualified personnel for the management of
the JVC including without limitation experienced personnel for
attending to the marketing and sales of the TIS 4000 Systems.
19
ARTICLE XI
----------
COVENANTS BY TIS
----------------
(S) 11.1 Covenants by TIS
----------------
TIS shall at the expense of the JVC, provide services to the JVC, which services
may include, but shall not be limited to the following:
11.1.1 provide the JVC with a complete set of user's materials (as described
in the Licence Agreement) on the use and operations of the TIS 4000
Technology and for use as developer tools as well as for diagnostic
purpose;
11.1.2 provide training for personnel of the JVC on the use and incorporation
of the TIS 4000 Technology into TIS 4000 systems in the English
language at TIS's then current published rates for such services;
11.1.3 provide the JVC with reasonable technical consultation and support,
including diagnostic support, via modem telecommunications at TIS's
then current published rates for such services;
11.1.4 provide technical support, support systems and designs and
modifications made specifically to meet the requirements of the ASEAN
Territory at TIS's then current published rates for such services;
11.1.5 supply or arrange to supply to the JVC at reasonable and favourable
terms and conditions up to date and modern machinery and equipment
required by the JVC for the production of the TIS 4000 Systems;
11.1.6 organize training for the engineers, technicians and officers of the
JVC to operate efficiently all the machinery and equipment at the JVC
premises in accordance with the terms and conditions of the Licence
Agreement;
11.1.7 transfer requisite and up to date technology and know how to the
employees of the JVC in relation to the TIS 4000 Technology which
technology shall in no event include the TIS 4000 Technology source
code except as provided under the Licence Agreement;
11.1.8 provide technical support to assist the JVC in the creation of an
engineering and technical training group for the JVC;
11.1.9 provide internal and external sales and marketing support to the JVC,
including, but not limited to, staging marketing and sales campaigns
for the JVC; and
11.1.10 second suitable, qualified and experienced personnel to the JVC to
provide the necessary technical and marketing support to the JVC.
(S) 11.2 Payment for services
--------------------
20
11.2.1 The JVC shall pay TIS for all services rendered to the JVC pursuant to
this Agreement at TIS' then current published rates for such services
on a monthly basis, in arrears and upon receipt by the JVC of invoices
therefor.
11.2.2 In accordance with the annual budgets approved by a Supermajority of
the Board, KUBH and TIS shall be reimbursed by the JVC for all
properly documented and budgeted out-of-pocket expenses incurred with
respect to the discharge of their respective responsibilities under
this Agreement. Reimbursement shall be made on a monthly basis, in
arrears and in accordance with the annual budget approved by a
Supermajority of the Board, upon receipt by the JVC of appropriate
invoices and supporting documentation.
ARTICLE XII
-----------
REPRESENTATIONS AND WARRANTIES
------------------------------
(S) 12.1 KUBH Representations and Warranties
-----------------------------------
KUBH hereby represents and warrants to TIS that:
12.1.1 KUBH is a corporation duly organized under the laws of Malaysia and
has full legal right, power and authority to enter into and perform
its obligations under this Agreement.
12.1.2 This Agreement has been duly authorised, executed and delivered by
KUBH and, assuming the valid execution and delivery hereof by TIS,
constitutes a legal, valid and binding obligation of KUBH.
12.1.3 Except as disclosed in writing, there is no action before any court or
governmental authority, pending or, to the best of KUBH's knowledge,
threatened against KUBH, wherein an unfavourable decision, ruling or
finding would materially adversely affect the performance of its
obligations hereunder.
12.1.4 Neither the execution or delivery by KUBH of this Agreement, nor the
performance of its obligations contemplated hereby nor its fulfillment
of the terms or conditions of this Agreement (a) conflicts with,
violates or results in a breach of any applicable law, or (b)
conflicts with, violates or results in a breach of any term or
condition of any judgment or decree, or any agreement or instrument,
to which KUBH is a party or by which KUBH or any of its properties or
assets are bound, or constitutes a default thereunder.
12.1.5 Subject to (S)4.1 hereof, no approval, authorisation, order or
consent of, or declaration, registration of filing with, any
governmental authority is required for the valid execution and
delivery by KUBH of this Agreement except those that have been duly
obtained or made.
21
(S) 12.2 TIS Representations and Warranties
----------------------------------
TIS hereby represents and warrants to KUBH that:
12.2.1 TIS is a limited partnership duly organized under the laws of the
State of Delaware and has full legal right, power and authority to
enter into and perform its obligations under this Agreement.
12.2.2 This Agreement has been duly authorised, executed and delivered by TIS
and, assuming the valid execution and delivery hereof by KUBH,
constitutes a legal, valid and binding obligation of TIS.
12.2.3 Except as disclosed in writing, there is no action before any court or
governmental authority, pending or, to the best of TIS's knowledge,
threatened against TIS, wherein an unfavourable decision, ruling, or
finding would materially adversely affect the performance of its
obligations hereunder.
12.2.4 Neither the execution or delivery by TIS of this Agreement, nor the
performance of its obligations contemplated hereby nor its fulfillment
of the terms or conditions of this Agreement (a) conflicts with,
violates or results in a breach of any applicable law, or (b)
conflicts with, violates or results in a breach of any term or
condition of any judgment or decree, or any agreement or instrument,
to which TIS is a party or by which TIS or any of its properties or
assets are bound, or constitutes a default thereunder.
12.2.5 No approval, authorisation, order or consent of, or declaration,
registration of filing with, any governmental authority is required
for the valid execution and delivery by TIS of this Agreement except
those that have been duly obtained or made.
12.2.6 TIS is the absolute proprietor and copyright owner of the TIS 4000
Technology only and TIS makes no representation or warranty with
respect to ownership rights of TIS in or to any TIS 4000 System or any
third party software or hardware used in a TIS 4000 System.
ARTICLE XIII
------------
ARBITRATION
-----------
(S) 13.1 Arbitration
-----------
13.1.1 Any dispute, controversy or claim between or among the Parties hereto
arising out of or in relation to this Agreement, or the breach,
termination or invalidity thereof shall be settled, in so far as it is
possible, by mutual consultation and consent.
13.1.2 If the Parties hereto should be unable to reach mutual consent, the
question shall be settled by arbitration.
13.1.3 Any arbitration shall be conducted by a single arbitrator in the case
the Parties can agree upon one or otherwise to two arbitrators one to
be appointed by each Party in accordance with and subject to the
provisions of the Arbitration Act, 1952 of
22
Malaysia or any statutory modification or re-enactment thereof for
the time being in force.
ARTICLE XIV
-----------
TERMINATION
-----------
(S) 14.1 Termination of this Agreement
-----------------------------
This Agreement will continue in effect until terminated in any of the following
events:
14.1.1 by any Party, in the event of a material breach of the terms and
conditions contained in this Agreement by the other Party hereto; or
14.1.2 by any Party, upon seven (7) days' prior written notice to such effect
to the other Party in the event of dissolution, insolvency or
bankruptcy (except for amalgamation) proceedings or any other
proceedings analogous in nature or effect are instituted by or against
the other Party hereto, any Party is dissolved or liquidated whether
voluntarily or involuntarily, a receiver or trustee is appointed for
all or a substantial part of the assets of any Party or a Party makes
an assignment for the benefit of creditors; or
14.1.3 upon the termination of the Licence Agreement in accordance with its
terms; or
14.1.4 in the event that the JVC's independent auditors determine that the
JVC requires additional capital to avoid insolvency of the JVC and a
majority of the Board fails to agree to require such additional
capitalization.
(S) 14.2 Notice of Termination
---------------------
In the event of a material breach of the terms and conditions contained in this
Agreement by a Party hereto (the "defaulting Party"), the other Party (the
"aggrieved Party") if it wishes to terminate this Agreement by reason of such
material breach, shall first give to the defaulting Party not less than thirty
(30) days' prior written notice requiring the defaulting Party to remedy or
rectify such breach within such thirty (30) days period to the satisfaction of
the aggrieved Party, and if the defaulting Party fails or refuses to cure or
have undertaken to cure the same, the aggrieved Party shall be entitled after
such thirty (30) days period to terminate this Agreement by giving to the
defaulting Party, written notice of such termination whereupon this Agreement
shall be treated as terminated on the date of the said written notice of
termination.
(S) 14.3 Effect of Termination
---------------------
14.3.1 Upon termination of this Agreement pursuant to (S)14.2 hereof, the
Party giving notice of termination shall have the option to acquire
the entire shareholding of the defaulting Party in the JVC at the
price to be determined in accordance with (S)8.1.3.2 hereof, or shall
have the right, exercisable by notice in writing to the defaulting
Party to require that the JVC be wound up; provided that no such right
shall exist unless the Party giving such notice is a member of the JVC
at the time of such notice, the Parties hereto shall join in procuring
the prompt and due convening of an extraordinary general meeting of
the JVC for the purpose of proposing a special resolution for the
winding up of the JVC, and shall procure that such extraordinary
general meeting is held at the place and time for which it is convened
and that such special resolution is duly passed.
23
14.3.2 Any termination of this Agreement shall without prejudice to and shall
not affect any rights or remedies which any Party hereto may be
entitled to against the other Party in respect of or arising from or
in connection with any antecedent breach of this Agreement by such
other Party.
(S) 14.4 Agreement to Terminate
----------------------
Notwithstanding any other provisions in this Agreement to the contrary, the
Parties hereto may by unanimous consent terminate this Agreement at any time.
ARTICLE XV
----------
GENERAL TERMS
-------------
(S) 15.1 Remedies and Waivers
---------------------
Time shall be of the essence of this Agreement but a failure to exercise and a
delay in exercising any right, power or privilege under this Agreement shall not
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege preclude any other or further exercise thereof or the
exercise of any other right power or privilege. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by
law.
(S) 15.2 Restriction on Assignment
-------------------------
The rights and obligations arising hereunder shall not be assignable by any
Party hereto without the prior written consent of the other Party hereto.
(S) 15.3 Entire Agreement
----------------
This Agreement constitutes the entire agreement between the Parties hereto with
respect to the matters dealt with therein. No variation of this Agreement shall
be valid or effective unless made by one or more instruments in writing and
signed by such of the Parties hereto which would be affected by such variation.
(S) 15.4 Governing Law
-------------
15.4.1 This Agreement shall be governed by and construed in all respects in
accordance with the laws of Malaysia.
15.4.2 TIS hereby irrevocably agrees that any legal action or proceedings
against it with respect to this Agreement may be brought in the courts
of Malaysia and TIS hereby:
15.4.2.1 irrevocably submits itself unconditionally to the non-
exclusive jurisdiction of the aforesaid courts;
15.4.2.2 irrevocably appoints Messrs Shearn Delamore & Co of No.
2, Benteng, 50050 Kuala Lumpur, Malaysia as its agents to
receive service of process in Kuala Lumpur, Malaysia and
such appointment shall not be revoked without the consent
in writing of KUBH; and
15.4.2.3 acknowledges the competence of any such courts, and agree
that a final judgment in any such suit, action or
proceeding brought in such courts shall be conclusive and
binding upon TIS and may be enforced
24
in the Courts of the State of Delaware and/or any other
states in the United States of America (to the extent (if
any) permissible under the Laws of State of Delaware
and/or the other states of the United States of America,
as the case may be) or in any other courts to the
jurisdiction or which TIS is or may be subject by a suit
upon such judgment, a certified or exemplified copy of
which shall be conclusive evidence of the fact and of the
amount of TIS's indebtedness.
(S) 15.5 No Partnership
--------------
Nothing in this Agreement shall constitute or be deemed to constitute a
partnership between any of the Parties hereto and none of them shall have any
Authority to bind the others in any way.
(S) 15.6 Force Majeure
-------------
No Party shall be liable for failure to perform its obligations under this
Agreement if and to the extent the failure is due to acts of God, causes beyond
its reasonable control such as, but not limited to, fire, flood or other natural
catastrophes insurrection, industrial disturbance, inevitable accidents, war
(undeclared or declared), embargoes, blockages, legal prohibitions, riots or
strikes acts of the government in either its sovereign or contractual capacity
(each a "Force Majeure").
(S) 15.7 Confidentiality
---------------
15.7.1 Except as required by any governmental or other regulatory authority,
or any competent court having jurisdiction, no public announcement or
press release shall be made by or on behalf of any Party hereto about
the existence or contents of this Agreement, or the negotiations
hereunder, without the prior written consent of the other Party
hereto. Furthermore, any proposed announcement or press release shall
be discussed among all the Parties hereto with the views and wishes of
each Party being duly taken into account in the drafting of such
announcement or press release.
15.7.2 The Parties hereto undertake to each other and the JVC that they will
not at any time hereafter use or divulge or communicate to any persons
other than to officers or employees of the group whose province it is
to know the same or on the instructions of the Directors any
confidential information concerning the business, accounts, finance or
contractual arrangements or other dealings, transactions or affairs of
the group which may come to their knowledge and they shall use their
best endeavours to prevent the publication or disclosure of any
confidential Information concerning such matters.
(S) 15.8 Severability
------------
Any term, condition, stipulation, provision, covenant or undertaking of this
Agreement which is illegal, prohibited or unenforceable in any jurisdiction of
the United States, Malaysia or any country in the ASEAN Territory shall as to
such jurisdiction be ineffective to the extent of such illegality, voidness,
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such illegality, voidness, prohibition or unenforceability1ity in
any unenforceable any such term condition stipulation provision covenant or
undertaking in any other jurisdiction.
(S) 15.9 Specific Performance
--------------------
Each Party hereto shall be entitled to the right of specific performance against
the other Party hereto under the provisions of this Agreement and it is hereby
agreed that an alternative remedy of
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monetary compensation shall not be regarded as compensation or sufficient
compensation for such Party's default in the performance of the terms and
conditions of this Agreement.
(S) 15.10 Costs
-----
All costs and expenses agreed by the Parties hereto as follows shall be borne by
the JVC:
15.10.1 the stamping of this Agreement;
15.10.2 pre-operating costs and expenses incurred by any of the Parties as
agreed prior to the Effective Date.
(S) 15.11 Notices
-------
Any notice required to be given by one Party hereto to the other Party hereto
hereunder shall be in the English Language and shall be sufficient given if
forwarded by hand or prepaid registered post or by telex or telegram or cable or
telefax to the address or addresses hereinbelow stated of the other Party and
shall be deemed to be duly served:
15.11.1 if delivered by hand, on delivery and acknowledged receipt thereof, or
15.11.2 if it is sent by prepaid registered post, five (5) days after posting
thereof; or
15.11.3 if it is sent by telegram or cable or telefax on the Business Day next
after the date of dispatch; or
15.11.4 if it is sent by telex, immediately after transmission thereof and
confirmed by the answer back, if the date of transmission is not a
Business Day, then the notice by telex shall be deemed to be served on
the immediately following Business Day.
For KUBH:
- --------
1st Floor, Bangunan UMNO,
Jalan Tuanku Abdul Rahman,
50100 Kuala Lumpur,
Malaysia.
Telefax: (603) 2911539
For TIS:
- -------
11431 Cronhill Drive,
Suite J,
Owings Mills,
Maryland 21117,
United States of America.
Telefax: (410) 3851871
(S) 15.12 Designation of Representative
-----------------------------
Each Party shall designate to the other in writing a representative to whom all
communications shall be addressed and who has the authority to make decisions
and execute documents on behalf of the Party. KUBH hereby designates Megat Ahmad
Sani and TIS hereby designates William Timothy Shaw, President of TIS. Each
Party may designate a different representative by giving prior written notice to
the other Party. All consents given by the representative on behalf of each
Party hereto shall be considered valid and binding and may be relied upon by the
other Party.
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and
year first abovewritten.
SIGNED by EDWARD O. McNICHOLAS
for and on behalf of )
TATE INTEGRATED SYSTEMS, L.P. )
in the presence of: ) /s/ Edward O. McNicholas
------------------------
(Signatory)
- ---------------------------------
(Witness)
Name:
SIGNED by HASSAN HARUN )
for and on behalf of )
KUB-TIS CONTROLS SDN.BED. )
in the presence of: ) /s/ Hassan Harun
----------------
(Signatory)
- ---------------------------------
(Witness)
Name:
[This is the execution page of the License Agreement dated the 9th day of
March, 1995 made between Tate Integrated Systems, L.P. and KUB-TIS Controls Sdn.
Bhd.]
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