Exhibit 10.18.1
AMENDED AND RESTATED JOINT VENTURE AGREEMENT
THIS AGREEMENT is made on this 3rd day of December, 2001 by and between:
a. XXX XXX COMPANY LIMITED, a limited company organized and existing under
the laws of the Kingdom of Thailand, with its registered office located at
000-000 Xxxxx Xxxx, Xxxxxx Pomprab, Khet Pomprabsattrupai, Bangkok,
Thailand ("HK");
b. FOAMEX ASIA, INC., a corporation organized and existing under the laws
of the State of Delaware, U.S.A., with its principal office and place of
business at 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, X.X.X.
("FAI"); and
c. The Other Shareholders listed on Schedule 1 attached hereto (the "Other
Shareholders").
WHEREAS:
A. The parties formed a private limited company incorporated in the Kingdom
of Thailand on June 5, 1997, Foamex Asia Co., Ltd. ("FAC").
B. The parties entered into a Joint Venture Agreement, dated July 8, 1997
(the "Original Agreement"), to govern the business of FAC and subsequently
entered into an Amendment to the Original Agreement, dated July 15, 1998
(the "Amendment").
C. The parties have agreed to amend and restate the Original Agreement as
set forth below to reflect the Amendment and subsequent changes in their
relations as shareholders in FAC. As a result of the execution of this
Agreement, the Amendment and the Loan Agreement (as hereinafter defined,
including the Option Agreement attached as Annex D thereto) shall cease to
be of any further force and effect.
D. The Other Shareholders are Shareholders of the Company and members of
the HK Group.
NOW, THEREFORE, IT IS AGREED as follows:
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1. Interpretation.
1.1 Definitions. In this Agreement the following terms shall, unless
the context otherwise requires, have the following meanings:
"Asia" means Thailand, Brunai, China, Taiwan, Korea, Philippines, Malaysia,
Vietnam, Myanmar, Indonesia, Laos, Cambodia and Singapore.
"Board" means the board of directors of FAC;
"Competing Business" means a company which imports, exports, sells,
markets, trades, manufactures or otherwise deals with polymer foams that are
manufactured by FAC in any country in Asia in which FAC markets its products
other than a country in which, as of July 8, 1997, either of the parties
directly or indirectly holds shares in a company which engages in similar
activities; provided, however, that the automotive, furniture and bedding
polymer foam businesses shall not constitute a Competing Business.
"Completion" means November 30, 2001;
"control" means the ownership, direct or indirect, of more than fifty
percent (50%) of the issued and outstanding voting capital shares of a company;
"FAC" means the limited company, Foamex Asia Co., Ltd., with its registered
address at 20th Floor, Sathorn City Tower, 000 Xxxxx Xxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxx, Xxxxxxx, 00000, Thailand, which has been incorporated and shall be used
by the parties pursuant to the terms of this Agreement;
"FAI Group" means FAI and any company or individual which controls, is
under common control with, or is controlled by FAI;
"FAI Equity Note" means the promissory note in the principal amount of
$1.35 million executed by FAI in favor of HK as set out in Annex 4 hereto;
"FAI Note" means the promissory note in the principal amount of $4.2
million executed by FAC in favor of FAI as set out in Annex 5 hereto;
"FI" means Foamex International Inc., a Delaware corporation;
"Foamex L.P." means Foamex L.P., a Delaware limited partnership;
"Group A Director" means a director of FAC nominated by HK pursuant to
clause 4.1;
"Group B Director" means a director of FAC nominated by FAI pursuant to
clause 4.1;
"Group A Shares" means ordinary shares of FAC held by HK;
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"Group B Shares" means ordinary shares of FAC held by FAI;
"HK Group" means HK, the Other Shareholders and any company or individual
which controls, is under common control with, or is controlled by HK;
"HK Note" means the promissory note in the principal amount of $1.8 million
executed by FAC in favor of HK (as assignee of FAI) as set out in Annex 6
hereto;
"Loan Agreement" means the term sheet by and among FAI, HK and FAC as set
out in Annex 3 hereto.
"Memorandum and Articles" means the Memorandum of Association and Articles
of Association, respectively, of FAC as set out in Annex 1A and Annex 2A,
respectively; and
"Notes" means the FAI Equity Note, the FAI Note and the HK Note,
collectively.
"Parties" means FAI and HK.
"Technology License Agreement" means the form of Technology License
Agreement, between Foamex L.P. and FAC attached hereto as Annex 7 together with
the form of Trademark License Agreement between Foamex L.P. and FAC attached
hereto as Annex 8.
1.2 Headings. Headings are inserted for convenience only and shall not
affect the construction of this Agreement.
2. Corporate Existence.
2.1 Structure. On or prior to the date of execution of this Agreement,
the following events have taken place:
(a) there shall have been obtained or effected each of the
consents, amendments, approvals and notifications identified in Section 3.3(i),
(ii) and (iii) of the Share Purchase Agreement (as hereinafter defined) which,
in the opinion of Thai counsel, are required to be obtained prior to FAI being
able to lawfully purchase the Subject Shares (as hereinafter defined);
(b) pursuant to the Loan Agreement whereby FAC has remitted the
payment for the outstanding loan made in the amount of Baht 36,366,340 plus
accrued interest on the loan, net of Thai tax withholding, i.e., Baht 14,955,034
less withholding tax of Baht 2,243,255, plus subsequent advances to FAC made by
FAI of US$415,615.43 (which for purposes hereunder is calculated at the exchange
rate of Baht 44.70=US$1.00, being Baht 18,578,010) to FAI and FAI thereupon has
remitted, or caused to be remitted, payment for the 5,091,288 Group B Shares to
FAC of Baht 50,912,880 at Baht 10 par value per share, plus premium of Baht
18,986,504;
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(c) FAC has executed and delivered to FAI the HK Note and the FAI
Note;
(d) FAI and HK have entered into the Share Purchase Agreement,
dated September 7, 2001, (the "Share Purchase Agreement"), pursuant to which FAI
shall purchase from HK 2,205,000 Group A Shares (the "Subject Shares"), which
shall be converted into 2,205,000 Group B Shares in exchange for (i) the
assignment of the HK Note, (ii) delivery of the FAI Equity Note and (iii)
certain contingency payments set forth in the Share Purchase Agreement;
(e) Advances made to FAC and guaranteed by HK in the aggregate
amount of Baht 15,000,000 and any FAI Advances in excess of $6.0 million shall
have been paid in cash by FAC to HK or its designee and FAI, respectively;
(f) the Articles of Association as set out in Annex 2A have been
amended as set out in Annex 2B by passing a special resolution at two (2)
successive shareholders meetings in accordance with Thai law; and
(g) the Technology License Agreement has been executed.
2.2 Name. Subject to the provisions of the Technology License
Agreement, the name of FAC shall be "Foamex Asia Co., Ltd."
3. Capital; Further Finance.
3.1 Share Capital. FAC shall, in accordance with and following
completion of the events and transactions referred to in clause 2 and the
subscription by FAI of 5,091,288 newly issued shares of FAC, having a total par
value of Baht 50,912,880 newly issued shares of FAC (Baht 10 per share) with a
premium payable on said newly issued shares of Baht 18,986,504, have registered
and issued, and paid up, share capital of Baht 105,000,000, consisting of a
total of 10,500,000 shares, Baht 10 par value per share, with 3,150,000 Group A
Shares owned by HK and the Other Shareholders, and 7,350,000 Group B Shares
owned by FAI.
3.2 Increase in Share Capital. The share capital of FAC may from time
to time be increased by the issuance of ordinary shares by such sum as the
parties shall mutually agree but so that such increased share capital shall be
held in the proportions of 30% by HK (or other members of the HK Group), being
Group A Shares and 70% by FAI (or other member of the FAI Group), being Group B
Shares.
3.3 Further Finance.
(a) If, after the date of this Agreement, FAC shall in the
opinion of the Board require further finance, FAC shall first approach its own
bankers. The parties shall not be obliged to provide guarantees for FAC's
liabilities in respect of such finance.
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(b) If finance cannot be obtained from FAC's own bankers, neither
party shall be obliged to provide any such further finance to FAC.
3.4 Party Ceasing as Shareholder. Upon either party ceasing to be a
shareholder in FAC, the other party shall cause any further finance provided by
that party under clause 3.3 to be repaid to it and that it shall be relieved of
its obligations under any guarantees provided under clause 3.3 (provided that,
notwithstanding the termination of this Agreement, a party ceasing to be a
shareholder shall remain liable under any such guarantees for any claims arising
in respect of any default by FAC or the subsidiary in question occurring during
the period during which that party was a shareholder in FAC).
4. Directors and Management.
4.1 Board of Directors. The business and affairs of FAC shall (subject
to the Reserved Shareholder Matters set out in clause 5) be managed by the Board
of FAC. The board shall consist of six (6) persons of which:
(a) HK shall be entitled to nominate three (3) directors (the
"Group A Nominees" and, after election, the "Group A Directors") (and, at the
request of HK, the shareholders shall remove any directors so nominated from
office and to nominate another in the place of any director so removed);
(b) FAI shall be entitled to nominate three (3) directors (the
"Group B Nominees" and, after election, the "Group B Directors") (and, at the
request of FAI, the shareholders shall remove any director so nominated from
office and to nominate another in the place of any director so removed);
(c) the Board shall consist, at all times, of an equal number of
Group A Directors and Group B Directors;
(d) Accordingly, if the number of directors is increased or
decreased, it shall be done in pairs, one (1) director being a Group A Director
and the other director being a Group B Director.
(e) each of HK and FAI agree to vote their shares in favor of the
Group A Nominees and the Group B Nominees.
(f) the initial Group A Directors, effective as soon as
practicable after the date hereof, shall be Dr. Pichit Nithivasin (Chairman),
Xx. Xxxxxxx Xxxxxxxx and Xx. Xxxxxx and the initial Group B Directors, effective
as soon as practicable after the date hereof, shall be Xx. Xxxx Xxxxxx (Vice
Chairman), Mr. Xxxxxx Xxx and Xx. Xxxx Xxxxxxxxxx.
4.2 Appointments and Removals. Every nomination and request for
removal by FAI or HK of a director pursuant to its entitlement shall be notified
in writing to the other party. FAI and HK shall each use their respective votes
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in FAC to ensure that the Board of FAC is constituted by persons appointed in
the manner set out in this Agreement.
4.3 Meetings. The Board shall hold at least three regular meetings per
year, two in Thailand and one in New York City.
4.4 Quorum. The quorum for the transaction of business at any meeting
of the Board shall be at least two (2) Group A Directors (or his proxy) and at
least two (2) Group B Directors (or his proxy) present in person or by telephone
at the time when the relevant business is transacted.
4.5 Voting. At any meeting of the Board, each Director shall be
entitled to one (1) vote. Any director who is absent from any meeting may
nominate (and confirm in writing) any other director to act as his proxy and to
vote in place at the meeting.
4.6 Notice and Agenda. At least thirty (30) days written notice shall
be given to each of the members of the Board of any meeting of the Board,
provided always that a shorter period of notice may be given with the written
approval of at least two (2) Group A Directors and at least two (2) Group B
Directors. Any such notice shall contain, inter alia, an agenda identifying in
reasonable detail the matters to be discussed at the meeting and shall be
accompanied by copies of any relevant papers to be discussed at the meeting.
4.7 Decisions of Board.
(a) FAI, HK and the Other Shareholders agree to accept as binding
upon them any decision affecting FAC, and/or the relationship of FAC with FAI or
HK (as the case may be), duly taken by the Board of FAC in which a majority of
the FAI and HK nominated directors (or their alternates) have concurred except
that the Reserved Shareholder Matters covered by clause 5 shall require the
prior approval of the parties in accordance with clause 5.3.
(b) In the event of a deadlock among the directors of the Board
regarding any proposed capital expenditure by FAC, Xx. Xxxxxxxx Xxxxx, for so
long as he is the Chairman of FI, shall be consulted and his decision regarding
such proposed expenditure shall be the determination of the entire Board and, if
such matter is also a Reserved Shareholder Matter, both HK and FAI shall vote
their shares in accordance with such decision.
4.8 Chairman, President and Chief Executive Officer ("CEO"). The
parties confirm that as of the date hereof the Chairman of FAC is Dr. Pichit
Nithivasin and the President and CEO of FAC is Xx. Xxxxxxx X. Xxxxxxxx, Xx. The
Chairman and CEO shall be under the direction of the Board. The Chairman shall
have responsibility for FAC's conformity with Thai governmental policies and
procedures, financial accounting and reporting, and domestic Thai banking
relationships. The CEO shall have responsibility for the day to day management
of the operations, other financial matters and property of FAC. The CEO shall
have sole authority in matters relating to operations, sales, marketing,
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customer relations and technology. Matters relating to senior staff such as
hiring, disengaging and remuneration shall be approved by the Chairman and CEO.
4.9 Authorization to Bind FAC. The individual signature of either Xx.
Xxxxxxx Xxxxxxxx, President and CEO or Dr. Pichit Nithivasin, Chairman, is
authorized to bind FAC. For any juristic act in excess of Baht 5,000,000, the
prior approval of two (2) of the Group A Directors together with the written
approval of two (2) of the Group B Directors shall be required.
4.10 Budget. The management of FAC shall present to the Board for
approval an operating budget (together with a supporting business plan) and a
capital budget no later than the first week of December of each year for the
succeeding year in such form as may be reasonably requested by the Board.
5. Reserved Shareholder Matters.
5.1 Matters Requiring Approval of the Parties. The following matters
("Reserved Shareholder Matters") shall require the prior approval of FAI and HK:
(a) any sale of the whole or any substantial part of FAC;
(b) any borrowing by FAC in excess of the Baht equivalent of
US$100,000 (or such other limit as the parties shall from time to time agree);
(c) approval of the annual budget and operating plan of FAC;
(d) any expansion of the marketing territory of FAC beyond Asia;
(e) any repayment by FAC of any loan prior to its maturity;
(f) the formation of any subsidiary of FAC;
(g) the purchase by FAC of the shares or other securities, stock
or debentures of any other company;
(h) the appointment (and removal) and the amendment of the terms
of reference of the Chairman or CEO;
(i) the appointment (and removal) of the auditors of FAC;
provided, however, that, upon FAI's request, such auditors shall be the same
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independent firm of certified public accountants (registered auditors) of
internationally recognized standing as retained by FI to audit its financial
statements;
(j) the entry into of any contract or commitment by FAC having a
value or likely to involve expenditure by FAC in excess of the Baht equivalent
of US$100,000 (or such other limit as the parties shall from time to time
agree), provided, however, that FAI and HK agree to vote their shares in favor
of any action proposed by the Board pursuant to Section 4.7(b); and
(k) any change in the number of directors authorized to bind FAC.
5.2 Shareholder Resolutions.
(a) The parties acknowledge that under the Civil and Commercial
Code of Thailand, the following matters require a resolution that has been
passed at a general meeting of the shareholders by a vote of at least
seventy-five percent (75%) of all shares outstanding:
(i) Investment in any other company or joint venture,
exceeding Baht 5,000,000.
(ii) Borrowing money, or guaranteeing liabilities in any
amount exceeding the paid-in capital of the Company.
(iii) Transfer of any assets of the Company except in the
normal course of Business.
(b) The parties acknowledge that under the Civil and Commercial
Code of Thailand, the following matters require a special resolution of the
shareholders of FAC, which includes, inter alia, the requirement that the
resolution has been passed by seventy-five percent (75%) of the votes cast at a
general shareholders meeting, and sixty-six and two-thirds percent (66 2/3%) of
the votes at a subsequent general meeting:
(i) amendment of the Memorandum or Articles;
(ii) increase or reduction of FAC's registered share
capital;
(iii) allotting new shares as fully or party paid-up
otherwise than in money;
(iv) amalgamation of FAC with another company; and
(v) dissolution or liquidation of FAC.
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5.3 Method of Approval.
(a) Shareholders or their representatives representing at least
seventy-five percent (75%) of the Company's shares shall constitute a quorum for
all general meetings of the shareholders.
(b) Each Shareholder shall have one vote for each share of which
he is the holder.
(c) Approval for the purposes of clause 5.1 may be given by FAI
and HK either in writing or by unanimous resolution at a general meeting of the
shareholders of FAC or by written resolution.
6. Transfer Of Shares.
6.1 Transfer Notice. Each party hereby undertakes that, if at any time
any member of its Group shall desire to sell or otherwise dispose of any of its
shares in FAC other than to another member of the HK Group or another member of
the FAI Group, as the case may be, then:
(a) the relevant party (the "Selling Party") shall give notice in
writing to the other party (the "Continuing Party") of such desire and of its
proposed price (in this clause referred to as a "Transfer Notice");
(b) within thirty (30) days after receipt of the Transfer Notice,
the Continuing Party shall have the right by notice in writing (a "Purchase
Notice") to inform the Selling Party that it wishes to purchase the shares
included in the Transfer Notice (the "Sale Shares") at such price as may be
specified in the Transfer Notice;
(c) if the Continuing Party so serves a Purchase Notice, the sale
and purchase of the Sale Shares shall be completed accordingly; if not, neither
the Selling Party nor any other member of its Group shall thereafter be entitled
to sell the Sale Shares but shall be entitled to request an independent,
internationally recognized banker or other expert customarily engaged in company
valuation mutually agreed upon by HK and FAI (acting as experts and not as
arbitrators) to determine the price (herein called the "Fair Price")
representing in their opinion a fair selling value of the Sale Shares as between
a willing buyer and a willing seller, provided, however, that if HK and FAI
cannot agree upon the party to determine the Fair Price, each of HK and FAI
shall select an otherwise qualified party and the two parties selected shall
select a third party which party shall determine the Fair Price.
(d) upon the Fair Price being so determined, the Selling Party
may give to the Continuing Party a further notice in writing (herein called a
"Second Transfer Notice") offering to sell the Sale Shares at the Fair Price;
(e) if the Continuing Party serves notice within thirty (30) days
of receipt of the Second Transfer Notice accepting such offer, the sale and
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purchase of the Sale Shares shall be completed accordingly; if not, the Selling
Party or any other member of its Group shall thereafter be entitled to sell the
Sale shares at not less than the Fair Price to a third party purchaser (approved
by the Continuing Party in writing but such approval shall not be unreasonably
withheld) and who shall thereupon be regarded for purposes of this Agreement as
a member of the same Group as the Selling Party) within a period of sixty (60)
days but not otherwise; and
(f) if any party is prevented or prohibited from acquiring any
shares because of any legal requirement, that party shall have the right to
nominate either (i) another person(s) from that party's Group, who is not
prohibited from purchasing such shares to acquire such shares, and such shares
shall be sold to such person(s) or (ii) a person(s) who is not a member of a
party's Group, in which case, the other party shall have no right to approve or
object to any such person unless the other party has demonstrated that a
commercial or other conflict would arise were such person to be allowed to
acquire such shares.
6.2 Transfers to Members of its Group.
(a) Each party shall have the right, upon thirty (30) days
advance written notice to the other party, to transfer all or part of its shares
to one or more members of its Group, provided that the other party has no
reasonable objection to the transfer.
(b) The member of the FAI Group, or member of the HK Group, as
the case may be, shall, in writing, agree to re-transfer such shares to the
transferring party without further action on the date on which the transferee
ceases to be a member of that Group.
(c) The parties intend that all transfers within Groups and to
parties outside Groups be done in a manner which will preserve the foreign vs.
Thai shareholding structure.
6.3 No Dealings in Beneficial Interest. Neither FAI nor HK (nor any
member of its respective Group) shall deal or attempt to deal with the
beneficial interest in any share of FAC except by transfer of its shareholding
permitted in accordance with this clause 6 or the transfer of shares (or
interests therein) by FAI to Xxxxxxx Xxxxxxxx or Xxxx Xxxxxx or as permitted by
paragraph 7 of the Articles of Association.
6.4 Undertaking by Transferee. No transfer of shares of FAC shall be
registered or become effective unless the transferee shall first have entered
into an agreement undertaking to be bound by this Agreement (including this
clause 6) to the same extent as the transferor would have been bound had the
transfer not been effected.
6.5 Minimum Period. Neither party (nor any member of the HK Group or
any member of the FAI Group, as the case may be) shall be entitled to serve a
Transfer Notice under clause 6.1 prior to five (5) years from Completion.
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6.6 Shareholder Ceasing to be a Member of the Group. Each of FAI and
HK respectively undertakes to procure that, if any member of its Group holding
shares in FAC ceases at any time to be a member of that party, that member
shall, prior to so ceasing, have transferred all its shares in FAC held by it at
the time in question to the relevant party (or another member of its Group).
7. Confidentiality.
7.1 Confidentiality. Each of the parties at all times shall use all
reasonable endeavors to keep confidential (and to ensure that its employees and
agents shall keep confidential) any confidential information which it may
acquire in relation to FAC and its subsidiaries, if any, or in relation to the
clients, business or affairs of the other party (or any member of its respective
Group) and shall not use or disclose such information except with the consent of
the other party or, in the case of information relating to FAC or one of its
subsidiaries, if any, in the ordinary course of advancing the business of FAC.
The restriction in this clause 7.1 shall not apply to any information:
(a) which is publicly available or becomes publicly available
through no act of the first mentioned party;
(b) which was in the possession of that party prior to its
disclosure;
(c) which is disclosed to that party by a third party which did
not acquire the information under an obligation of confidentiality;
(d) which is independently acquired by that party as the result
of work carried out by an employee to whom no disclosure of such information had
been made; or
(e) which is disclosed in accordance with the requirements of
law, any stock exchange regulation or any binding judgment, order or requirement
of any court or other competent authority.
7.2 Employees, Agents, etc. Each party shall use all of its respective
powers to procure (so far as it is able) that FAC and its subsidiaries, if any,
shall use all reasonable endeavors to ensure that the officers, employees and
agents of each of them shall observe a similar obligation of confidence in favor
of the parties to this Agreement.
7.3 Survival After Termination. The provisions of this clause 7 shall
survive any termination of this Agreement.
8. Restrictions On The Parties. Neither FAI nor HK nor any member of its
respective Group (other than FAC) shall (either solely or jointly with any other
person, firm or company and whether directly or indirectly) carry on or be
engaged in or interested (except as the holder for investment of securities
dealt in on a stock exchange and not exceeding five percent (5%) in nominal
value of the securities of any class) in any Competing Business during the
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period of this Agreement; provided, however, that the foregoing shall not
restrict any member of the FAI Group from selling polyurethane foam and related
products to any customer (a) located outside of Asia, (b) not in competition
with FAC in a specific application market in Asia as of September 1, 2001 or (c)
that FAC is unwilling or unable to supply provided that it has a reasonable
opportunity to do so.
9. Supremacy of This Agreement.
(a) FAI and HK shall each use their respective votes in FAC and
make reasonable efforts (i) to ensure that this Agreement is duly performed and
(ii) to ensure that the provisions of the Memorandum and Articles are not
infringed (save that, in the event of any conflict between this Agreement and
the Memorandum and the Articles, this Agreement shall prevail as between the
parties).
(b) FAI and HK shall cause their nominated directors on the Board
to vote at Board meetings and shall also exercise or cause to be exercised their
voting rights with respect to the shares at general meetings of the shareholders
to effect the matters provided for under this Agreement concerning directors and
also to implement all the rights and obligations of the parties and FAC under
this Agreement.
10. Costs. Costs of FAI and HK incurred as of 1 February 1997 in connection
with the establishment of FAC and the costs of the incorporation of FAC shall be
borne and paid by FAC. FAC shall reimburse FAI or HK, as the case may be, who,
after having obtained the prior written approval of the other party, being FAI
or HK, as the case may be, has advanced, or incurred, costs for the
incorporation of FAC. All other costs of each party as from 1 February 1997
shall be solely for the account of that party except that FAC shall pay all
reasonable legal fees and expenses incurred by HK and Xxxxxxx Xxxxxxxx in
connection with this Agreement.
11. No Partnership or Agency. Nothing in this Agreement shall be deemed to
constitute a partnership between the parties or constitute any party the agent
of the other parties for any purpose or entitle any party to commit or bind any
other party (or any member of its respective Group) in any manner.
12. Entire Agreement. This Agreement, together with that certain letter
agreement of even date herewith among FAI, HK, FAC, FI and Foamex L.P., sets out
the entire agreement and understanding between the parties and shall supersede
all previous communications, either oral or written, between the parties with
respect to the subject matter hereof including the Memorandum of Understanding,
dated June 20, 2001, between FAI and HK.
13. Amendments. This Agreement may be amended only by an instrument in
writing signed by or on behalf of each of the parties. No amendment to this
Agreement which is purported to have been made verbally shall be valid.
14. Mutual Consultation And Goodwill. The parties confirm their intention
to promote the best interests of FAC and to consult fully on all matters
materially affecting the development of the business of FAC. Each party shall
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act in good faith towards the other party in order to promote the success of
FAC.
15. Notices. Any notice pursuant to this Agreement shall be in writing
signed by (or by some person duly authorized by) the person giving it and shall
be deemed effectively served when delivered personally or when sent, if given by
facsimile transmission (which is confirmed by registered mail notice on the same
or next business day as the facsimile transmission) or if sent by registered
post (airmail if the recipient is in a country other than the place of remitting
the notice) ten (10) days after having been deposited in the mail with
sufficient postage affixed to the address of the other party as follows (or to
such other address as shall have been duly notified in accordance with this
clause).
if to HK or the Other Shareholders:
Xxx Xxx Company Limited
x/x Xxxxxxxx Xxxxxxxxx Xx., Xxx.
00xx Xxxxx, Xxxxxxx Xxxx Tower
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attention: Dr. Pichit Nithivasin
if to FAI:
Foamex Asia, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
X.X.X.
Fax: 0 000 000-0000
Attention: Chief Financial Officer
with copies to:
Foamex International Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
X.X.X.
Fax: 0 000 000-0000
Attention: General Counsel
16. Invalidity. If any of the provisions of this Agreement is or becomes
invalid, illegal or unenforceable, the validity, legality or enforceability of
the remaining provisions shall not in any way be affected or impaired. The
parties shall negotiate in good faith in order to agree the terms of a mutually
satisfactory provision, achieving as near as possible the same commercial
effect, to be substituted for the provision found to be void or unenforceable.
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17. Assignment. None of the parties (nor any member of its respective
Group) shall be entitled to assign this Agreement or any of its rights or
obligations hereunder except to a transferee of that party's shares in FAC in
accordance with clause 6 of this Agreement or as permitted by paragraph 7 of the
Articles of Association.
18. Authority. Each of the undersigned represents and warrants that he, by
his signature below, is duly authorized to execute and deliver this Agreement
and the other documents contemplated hereby on behalf of the entity indicated.
19. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Kingdom of Thailand.
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AS WITNESS this Agreement has been executed the day and year first before
written.
XXX XXX COMPANY LIMITED
By: /s/ Dr. Pichit Nithiwasin
Name: Dr. Pichit Nithiwasin
Title: Director
FOAMEX ASIA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxxxxx
By: /s/ Supachorn Nithiwasin
----------------------------------
Name: Supachorn Nithiwasin
By: /s/ Orla Nithiwasin
----------------------------------
Name: Orla Nithiwasin
By: /s/ Pichit Nithiwasin
----------------------------------
Name: Pichit Nithiwasin
NITHI & ASSOCIATES CO., LTD.
By: /s/ Pichit Nithiwasin
----------------------------------
Name: Pichit Nithiwasin
15
