Exhibit 10.11
APRIL 31, 2002
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APRIL 1, 2002
JOINT VENTURE AGREEMENT
by and among
BOSCAN MIDDLE EAST INVESTMENTS LIMITED
and
CYGNE DESIGNS, INC.
Dated as of April 1, 2002
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JOINT VENTURE AGREEMENT, dated as of April 1, 2002, by and among Boscan
Middle East Investments Limited, a British Virgin Islands corporation ("BMEI"),
and Cygne Designs, Inc., a Delaware corporation ("Cygne").
W I T N E S S E T H:
WHEREAS, the parties are engaged, directly or through affiliates, in the
business of developing, marketing and selling knit clothing, and manufacturing
or sourcing such knit clothing in the Kingdom of Jordan;
WHEREAS, the parties believe that their combined capabilities and expertise
significantly enhances the business opportunities available to either party
independently;
WHEREAS, the parties believe that a joint direct marketing presence in
Italy, Hong Kong and the United States would significantly enhance their ability
to serve customers in the United States and in Europe;
WHEREAS, the parties desire to form a Joint Venture (the "JV") to take
advantage of these opportunities; and
WHEREAS, the JV shall be the exclusive entity through which the parties, or
any affiliates thereof, shall sell knit clothing manufactured in the Kingdom of
Jordan.
NOW, THEREFORE, in reliance upon the covenants and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
I. DEFINITIONS
The following terms shall have the following respective meanings for all
purposes of this Agreement:
"Allocated Costs" has the meaning set forth in Section 2.13.
"Agreement" means this Joint Venture Agreement, as it may be from time to
time amended.
"Assumed Contracts" shall mean the contracts, agreements and arrangements
listed on SCHEDULES 3.1, 3.3, 6.6, 7.6 hereto and all Customer Purchase Orders
and Vendor Purchase Orders.
"Business" means the development, marketing, and sales of knit clothing
manufactured or sourced in the Kingdom of Jordan.
"Closing" means the completion of the acquisition by Cygne of a 50%
interest in the JV pursuant to this Agreement.
"Closing Customer Purchase Order Balances" means the aggregate balance of
Customer Purchase Orders remaining to be delivered to customers at the Closing
Date.
"Closing Date" means the date the Closing takes place.
"Contributed Fixed Assets" has the meaning set forth in Section 2.3.
"Contributed Goodwill" has the meaning set forth in Section 2.4.
"Customer Purchase Orders" means confirmed purchase orders for knit
products to be manufactured in the Kingdom of Jordan.
"Governmental Entity" means any court, administrative agency or commission
or other governmental authority or instrumentality.
"Registered Capital" has the meaning set forth in Section 2.2.
"Land" means land located in that portion of the QIZ designated as "Cyber
City" in the Kingdom of Jordan, which has been improved so as to be ready for
development and is without limitation, adequately serviced in terms of road
access, water and electrical power.
"Liens" means collectively any mortgage, pledge, security interest,
encumbrance, claim, lien, option, charge or agreement.
"Person" means an individual, partnership, corporation, joint venture,
unincorporated organization, cooperative or a governmental entity or agency
thereof.
"Standard Minute Value," or "SMV" shall be the aggregate sewing machine
time in the production lines for each product, and shall be determined jointly
by the parties in good faith, with due regard to market prices available from
local subcontractors at the time a product is being priced for quotation to
customers. As reference, the SMV for a typical polo shirt has been jointly
determined by the parties to be 13.50 minutes.
"Vendor Purchase Orders" means confirmed orders for fabric and accessories
necessary to fulfill the production of Customer Purchase Orders.
II. JOINT VENTURE
Section 2.1 JOINT VENTURE FORMATION. BMEI and Cygne shall form a
corporation duly organized under the laws of the Kingdom of Jordan, which shall
be the legal entity through which the parties shall conduct the Business. The
parties shall jointly decide upon the name of this corporation, hereinafter
referred to as the JV.
Section 2.2 REGISTERED CAPITAL. BMEI and Cygne shall each contribute to the
JV US$250,000 in cash as registered capital and shall each receive a 50%
interest in the JV.
Section 2.3 BMEI ADDITIONAL CAPITAL CONTRIBUTION. At the Closing, BMEI
shall contribute to the JV fixed assets comprised of land, machinery and
equipment, free and clear of any Liens and having a tangible net book value of
at least US$2,500,000 (the "Contributed Fixed Assets"). For the purpose of
determining value of the Contributed Fixed Assets, the following valuation shall
apply: (A) with respect to Land, US$25,000 per Xxxxxx; and (B), with respect to
machinery, furniture and equipment, the lesser of (i) cost, (ii) market value,
or (iii) net book value on the books of BMEI or its affiliates as audited by
Ernst & Young; provided, however, that machinery and equipment older than two
years shall be valued at 50% of original purchase price, including freight.
Notwithstanding the valuation of the preceding sentence, the Contributed Fixed
Assets shall be valued and recorded on the books of the JV as follows: (A) with
respect to Land, JD30,000 per Xxxxxx; and (B), with respect to machinery,
furniture and equipment, the net book value on the books of BMEI or its
affiliates as audited by Ernst and Young immediately prior to its being
contributed to the JV. The Contributed Fixed Asset shall have a tangible net
book value in excess of US$3,000,00.
Section 2.4 CYGNE ADDITIONAL CAPITAL CONTRIBUTION. At the Closing, Cygne
shall contribute to the JV all the goodwill, trade names and trademarks listed
on SCHEDULE 2.4 hereunder, order backlog, know-how (including Cygne and its
designee's ability to generate sales on behalf of the JV), non-competition (as
provided in Section 2.7 hereunder) and customer contacts relating to
the Business and owned or held by Cygne or its affiliates, including without
limitation Prosperity Textiles Ltd (together, the "Contributed Goodwill"). The
parties agree that the value to the JV of the Contributed Goodwill is equal to
the tangible net book value of the Contributed Fixed Assets as provided in the
last two sentences of Section 2.3 hereabove.
Section 2.5 SHAREHOLDERS' AGREEMENT. At the Closing, the parties and the JV
shall execute a Shareholders' Agreement substantially in the form attached
hereto as Appendix A.
Section 2.6 EXCLUSIVITY. The parties agree to conduct the Business
exclusively through the JV, so long as they are, directly or through affiliates,
shareholders of the JV.
Section 2.7 NON-COMPETITION. Subject to the provisions of Section 2.8
hereunder, Cygne agrees that it will not, for the period during which it is a
shareholder in the JV, directly or through affiliates (the "Non-Compete
Period"), source or manufacture knit products in the Kingdom of Jordan other
than through the JV. Cygne acknowledges and agrees that a substantial and
legally sufficient portion of the consideration for its 50% ownership in the JV
is attributable to the non-competition provisions of this Section 2.7 and Cygne
expressly waives any right to assert inadequacy of consideration as a defence to
enforcement of the non-competition provisions of this Section 2.7 should such
enforcement ever become necessary. Cygne acknowledges that a remedy at law for
any breach or attempted breach of this Section 2.7 will be inadequate and
further agrees that any breach of this Section 2.7 will result in irreparable
harm to the Business; and Cygne covenants and agrees not to oppose any demand
for specific performance and injunctive and other equitable relief in case of
any such breach or attempted breach.
Section 2.8 PROSPERITY TEXTILES LTD. FACTORY. Cygne shall cause its
subsidiary, Prosperity Textiles Ltd., to cease operations of its factory and
agency within sixty days following the Closing Date.
Section 2.9 CUSTOMER PURCHASE ORDERS. At the Closing, each party shall
assign and transfer to the JV the Closing Customer Purchase Order Balances,
subject to prior mutual consent on the balances, together with all rights and
obligations attached thereto, and use its best efforts to obtain customers'
consents to such assignment and transfer. In those cases where such consent is
not obtained prior to the Closing Date, the parties shall cooperate with the JV
to establish arrangements that will provide for the transfer of the economic
rights and obligations of the Closing Customer Purchase Order Balances to the
JV.
Section 2.10 VENDOR PURCHASE ORDERS. The parties shall assign and transfer
to the JV, subject to prior mutual consent on the balances, all rights and
obligations pertaining to undelivered Vendor Purchase Orders for fabric and
accessories relating to the Closing Customer Purchase Order Balances.
Section 2.11 INVENTORIES. The parties shall assign and transfer to the
JV, subject to prior mutual consent on the balances, all inventories of fabric,
accessories, work-in-progress and finished goods relating to the Closing
Customer Purchase Order Balances. The JV shall pay the Cost (as defined
hereunder) of such inventories to the relevant party within thirty business days
from the Closing Date. For the purpose of this section, "Cost" means any
out-of-pocket moneys paid prior to the Closing for such inventories; provided,
however, that labor costs shall be valued at (i) zero with respect to
work-in-progress inventories, and (ii) the labor content of Standard
Manufacturing Cost with respect to first quality finished goods inventories.
Section 2.12 FACTORY AND AGENCY. The JV shall operate two divisions: a
knitwear production facility (the "Factory"), and an Agency on the premises
allocated by BMEI in the Madinat Xx-Xxxxxx Estate, QIZ, the Kingdom of Jordan,
with total usable space of approximately 10,000 square meters (the "Premises").
The Factory shall be responsible for the production of knitwear on these
premises and the Agency shall be responsible for the following tasks:
o Production planning in the Kingdom of Jordan
o Subcontractor sourcing and coordination
o Subcontractor quality assurance and quality control (excluding Factory
QA/QC)
o Merchandising support for Best Knits (Italy and New York)
o Sample room
o Pattern making, marking and grading
Section 2.13 FACTORY. The operating costs of the Factory shall be borne by
the JV, subject to prior budgetary approval, including direct labor, indirect
labor, overhead and other out-of-pocket expenses, as well as the costs allocated
by BMEI to the factory for rent and central services rendered by BMEI or its
affiliates to the JV (together, the "Allocated Costs"). The Allocated Costs
shall be determined annually by the JV and BMEI jointly. The first year's
Allocated Costs shall be discussed and agreed upon prior to the Closing;
provided, however, that the rent shall be US$2.75 per month per net square meter
up to a maximum of US$27,500 per month.
Section 2.14 ALLOCATED COSTS CHARGE. The Allocated Costs charged to the JV
shall be contingent upon the financial performance of the Factory and shall be
equal to the lesser of (A) the Factory net profit before Allocated Costs, if
any, for the prior month and (B) the monthly Allocated Costs. In determining the
Factory net profit, income shall be valued at US$0.08 per SMV for the first year
of the JV's operations and US$0.07 thereafter.
Section 2.15 AGENCY. The operating costs of the Agency shall be borne by
the JV (subject to prior budgetary approval) and shall include salaries, wages
and indirect related expenses, overhead and other out-of-pocket expenses, but no
Allocated Expenses. For the first two years of the JV's operations, Cygne shall
be responsible for maintaining the operating costs of the Agency under US$0.10
per unit shipped and shall, on a quarterly basis, reimburse the JV for any
excess operating costs over US$0.10 per unit shipped.
III. JOINT VENTURE OFFICES
Section 3.1 ITALIAN BRANCH OFFICE. As soon as practicable after the Closing
Date, the JV shall establish a branch office in Xxxxxxxx, Italy, which shall
operate under the name "Best Knits Italy," or such other name as shall be
determined by the JV. The Italian branch office shall cooperate with the JV in
performing the following tasks: product development, fabric research and
development, marketing and sales, and fabric and accessories sourcing and
purchasing. The Italian branch office shall assume the current lease of the
premises used by Best Knits Italy, a copy of which is attached hereto as
SCHEDULE 3.1.
Section 3.2 ITALIAN BRANCH OFFICE EXPENSES. The Italian Branch Office shall
operate as a cost center and the JV shall fund its expenses monthly in advance,
subject to prior budgetary approval; provided, however, that the Italian Branch
Office operating expenses shall be budgeted by the JV and operate within the
limits set by that budget. The prior sentence notwithstanding, for the first two
years of the JV's operations, Cygne shall be responsible for maintaining the
operating costs of the Agency under 4% of sales and shall, on an annual basis,
reimburse the JV for any excess operating costs over 4% of sales.
Section 3.3 ITALIAN BRANCH OFFICE PERSONNEL. SCHEDULE 3.3 comprises a
complete and correct list of the names, titles, length of employment or service
and current annual salary rates and all other compensation and fringe benefits
of each of the employees of the Italian Branch Office. Except as set forth on
SCHEDULE 3.3, none of such personnel is a party or subject to any oral or
written employment, bonus, pension, profit-sharing, deferred compensation,
percentage compensation, employee benefit (including without limitation, medical
disability, life insurance and other welfare benefit plans), incentive, pension
or retirement plans, fringe benefit or termination or severance agreements,
plans or commitments.
Section 3.4 NEW YORK CYGNE OFFICE. The New York office of Cygne shall
cooperate with the JV in obtaining Customer Purchase Orders as well as in
performing the following tasks: product development, fabric research and
development, and fabric and accessories sourcing and
purchasing. The JV shall compensate Cygne for such services by paying Cygne a
sales commission equal to 4% of sales booked by Cygne on behalf of the JV (net
of any contractual terms, but not of any deductions due to customer claims
attributable to quality or delivery). The sales commission shall be paid within
30 days from the contractual delivery of Customer Purchase Orders obtained
through the efforts of Cygne's New York office.
Section 3.5 NEW YORK BRANCH OFFICE. The JV shall have the option, subject
to prior mutual consent, exercisable at the beginning of each calendar quarter
with thirty days advance notice to enter into an agreement with Cygne to
establish a branch office on Cygne's premises. If the JV exercises this option,
it will pay, monthly in advance, the estimated operating expenses corresponding
to the activities conducted by the branch office; provided, however, that such
operating expenses shall be limited to (A) the cost of full-time branch office
employees, including employee benefits (including without limitation, medical
disability, life insurance and other welfare benefit plans), incentive, pension
or retirement plans, fringe benefit or termination or severance agreements, (B)
out-of-pocket expenses incurred on behalf of the JV, and (C) a reasonable
monthly charge for occupancy and communication costs agreed upon by Cygne and
the JV. Estimated monthly payments shall be reconciled quarterly. In the event
the JV elects to exercise this option, it will cease to pay any sales commission
to Cygne; provided, however, that any unpaid sales commission earned by Cygne
prior to the exercise of this option shall be immediately payable upon exercise
of this option.
Section 3.6 HONG KONG FALCON OFFICE. The Hong Kong office of Falcon shall
cooperate with the JV in obtaining Customer Purchase Orders as well as in
performing the following tasks: product development, fabric research and
development, and fabric and accessories sourcing and purchasing. The JV shall
compensate Falcon for such services by paying Falcon a sales commission equal to
4% of sales booked by Falcon on behalf of the JV (net of any contractual terms,
but not of any deductions due to customer claims attributable to quality or
delivery). The sales commission shall be paid within 30 days from the
contractual delivery of Customer Purchase Orders obtained through the efforts of
Falcon's Hong Kong office.
Section 3.7 HONG KONG BRANCH OFFICE. The JV shall have the option, subject
to mutual consent, exercisable at the beginning of each calendar quarter with
thirty days advance notice to enter into an agreement with Falcon to establish a
branch office on Cygne's premises. If the JV exercises this option, it will pay,
monthly in advance, the estimated operating expenses corresponding to the
activities conducted by the branch office; provided, however, that such
operating expenses shall be limited to (A) the cost of full-time branch office
employees, including employee benefits (including without limitation, medical
disability, life insurance and other welfare benefit plans), incentive, pension
or retirement plans, fringe benefit or termination or severance agreements, (B)
out-of-pocket expenses incurred on behalf of the JV, and (C) a reasonable
monthly charge for occupancy and communication costs agreed upon by Cygne and
the JV. Estimated monthly payments shall be reconciled quarterly. In the event
the JV elects to exercise this option, it will cease to pay any sales commission
to Falcon; provided, however, that any unpaid sales commission earned by Falcon
prior to the exercise of this option shall be immediately payable upon exercise
of this option.
IV. CONDITIONS PRECEDENT TO OBLIGATIONS OF CYGNE
The obligation of Cygne under this Agreement to consummate the acquisition
of a 50% interest in the JV at the Closing shall be subject to the satisfaction,
at or prior to the Closing, of all of the following conditions, to the
reasonable satisfaction of Cygne (any of which may be waived in writing in whole
or in part by Cygne):
Section 4.1 REPRESENTATIONS AND WARRANTIES ACCURATE. All representations
and warranties of BMEI contained in this Agreement shall be true in all material
respects on and as of the Closing Date with the same force and effect as though
such representations and warranties were made on and as of the Closing Date.
Section 4.2 PERFORMANCE BY BMEI. BMEI shall have performed and complied in
all material respects with all agreements, covenants and conditions required by
this Agreement to be performed and complied with by BMEI prior to or on the
Closing Date.
Section 4.3 CERTIFICATE. Cygne shall have received a certificate, dated the
Closing Date, signed by an authorized officer of BMEI, to the effect that the
conditions set forth in Sections 4.1 and 4.2 have been satisfied.
Section 4.4 LEGAL PROHIBITION. On the Closing Date, no injunction or order
shall be in effect prohibiting consummation of the transactions contemplated
hereby or which would make the consummation of such transactions unlawful and no
action or proceeding shall have been instituted and remain pending before a
court, governmental body or regulatory authority, nor shall any action or
proceeding be threatened, to restrain or prohibit the transactions contemplated
by this Agreement.
Section 4.5 CONSENTS, APPROVALS, PERMITS, LICENSES, ETC. All
authorizations, consents, waivers, approvals, orders, registrations,
qualifications, designations, declarations, filings or other action required
with or from any Governmental Entity or third party in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated thereby shall have been duly obtained and shall be
reasonably satisfactory to Cygne and its counsel, and copies thereof shall be
delivered to Cygne prior to the Closing. With respect to any Assumed Contract,
the assignment of which by its terms requires prior consent of the parties
thereto, if such consent is not obtained prior to the Closing Date, BMEI shall
cooperate with Cygne to establish arrangements which will provide for the
transfer of the economic benefits of such Assumed Contracts to the JV as of the
Closing Date under terms and conditions reasonably acceptable to all the parties
hereto.
Section 4.6 CLOSING MATTERS. All proceedings to be taken by BMEI in
connection with the consummation of the transactions contemplated hereby and all
certificates, instruments and other documents required to effect the
transactions contemplated hereby shall be reasonably satisfactory in form and
substance to Cygne and its counsel.
V. CONDITIONS PRECEDENT TO OBLIGATIONS OF BMEI
The obligation of BMEI under this Agreement to consummate Cygne's
acquisition of a 50% interest in the JV at the Closing shall be subject to the
satisfaction, at or prior to the Closing, of all of the following conditions, to
the reasonable satisfaction of BMEI (any of which may be waived in writing in
whole or in part by BMEI):
Section 5.1 REPRESENTATIONS AND WARRANTIES ACCURATE. All representations
and warranties of Cygne contained in this Agreement shall be true in all
material respects on and as of the Closing Date with the same force and effect
as though such representations and warranties were made on and as of the Closing
Date.
Section 5.2 PERFORMANCE BY CYGNE. Cygne shall have performed and complied
in all material respects with all agreements, covenants and conditions required
by this Agreement to be performed and complied with by Cygne prior to or on the
Closing Date.
Section 5.3 CERTIFICATE. BMEI shall have received a certificate, dated the
Closing Date, signed by an authorized officer of Cygne, to the effect that the
conditions set forth in Sections 5.1 and 5.2 have been satisfied.
Section 5.4 LEGAL PROHIBITION. On the Closing Date, no injunction or order
shall be in effect prohibiting consummation of the transactions contemplated
hereby or which would make the consummation of such transactions unlawful and no
action or proceeding shall have been instituted and remain pending before a
court, governmental body or regulatory authority, nor
shall any action or proceeding be threatened, to restrain or prohibit the
transactions contemplated by this Agreement.
Section 5.5 CONSENTS, APPROVALS, PERMITS, LICENSES, ETC. All
authorizations, consents, waivers, approvals, orders, registrations,
qualifications, designations, declarations, filings or other action required
with or from any Governmental Entity or third party in connection with the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated thereby shall have been duly obtained and shall be
reasonably satisfactory to BMEI and its counsel, and copies thereof shall be
delivered to BMEI prior to the Closing. With respect to any Assumed Contract,
the assignment of which by its terms requires prior consent of the parties
thereto, if such consent is not obtained prior to the Closing Date, Cygne shall
cooperate with BMEI to establish arrangements which will provide for the
transfer of the economic benefits of such Assumed Contracts to the JV as of the
Closing Date under terms and conditions reasonably acceptable to all the parties
hereto.
Section 5.6 CLOSING MATTERS. All proceedings to be taken by Cygne in
connection with the consummation of the transactions contemplated hereby and all
certificates, instruments and other documents required to effect the
transactions contemplated hereby shall be reasonably satisfactory in form and
substance to BMEI and its counsel.
VI. REPRESENTATIONS AND WARRANTIES OF CYGNE
Cygne represents, warrants and agrees as of the Closing Date that:
Section 6.1 ORGANIZATION AND QUALIFICATION. Cygne is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with corporate power and authority necessary to enter into and perform
this Agreement and the transactions contemplated hereby.
Section 6.2 DUE AUTHORIZATION. Cygne has all requisite corporate power and
authority to execute and deliver this Agreement and to perform fully its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery by Cygne of this Agreement and the other documents
contemplated hereby, the performance by Cygne of its obligations hereunder and
thereunder, and the transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary corporate action on the part of Cygne.
This Agreement has been duly executed and delivered by Cygne, and is a legal,
valid and binding obligation of Cygne, enforceable against it in accordance with
its terms (except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency or other laws affecting creditors' rights generally or by
general principles of equity, regardless of whether such enforceability is
considered in equity or at law).
Section 6.3 NO CONFLICT. Neither the execution and delivery of this
Agreement or any of the other documents contemplated hereby by Cygne nor the
consummation of the transactions contemplated hereby or thereby will (a)
conflict with, result in a breach or violation of or constitute (or with notice
or lapse of time or both constitute) a default under, (i) the Articles or
Memorandum of Association of Cygne or (ii) any statute, regulation, order,
judgment or decree or any instrument, contract or other agreement to which Cygne
is a party or by which Cygne is subject or bound; (b) terminate or modify, or
give any third party the right to terminate or modify, the provisions or terms
of any Assumed Contract; or (c) require Cygne to obtain any authorization,
consent, approval or waiver from, or to make any filing with, any Governmental
Entity or to obtain the approval or consent of any other Person.
Section 6.4 LITIGATION. There is no action, suit, proceeding or, to Cygne's
knowledge, investigation, at law or in equity or otherwise in, before or by any
court or governmental board, commission, agency, department or office, or
private arbitration tribunal pending or, to Cygne's knowledge, threatened by or
against Cygne that relates to the Business.
Section 6.5 PERSONNEL IN THE KINGDOM OF JORDAN. SCHEDULE 6.5 comprises a
complete and correct list of the names, titles, length of employment or service
and current annual salary rates and all other compensation and fringe benefits
of each of the employees in the Kingdom of Jordan who will be transferred to the
JV. Except as set forth on SCHEDULE 6.5, none of such personnel is a party or
subject to any oral or written employment, bonus, pension, profit-sharing,
deferred compensation, percentage compensation, employee benefit (including
without limitation, medical disability, life insurance and other welfare benefit
plans), incentive, pension or retirement plans, fringe benefit or termination or
severance agreements, plans or commitments other than those mandated by
applicable law.
VII. REPRESENTATIONS AND WARRANTIES OF BMEI
BMEI represents, warrants and agrees as of the Closing Date that:
Section 7.1 ORGANIZATION AND QUALIFICATION. BMEI is a corporation duly
organized, validly existing and in good standing under the laws of British
Virgin Islands, with corporate power and authority necessary to enter into and
perform this Agreement and the transactions contemplated hereby.
Section 7.2 DUE AUTHORIZATION. BMEI has all requisite corporate power and
authority to execute and deliver this Agreement and to perform fully its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery by BMEI of this Agreement and the other documents
contemplated hereby, the performance by BMEI of its obligations hereunder and
thereunder, and the transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary corporate action on the part of BMEI.
This Agreement has been duly executed and delivered by BMEI, and is a legal,
valid and binding obligation of BMEI, enforceable against it in accordance with
its terms (except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency or other laws affecting creditors' rights generally or by
general principles of equity, regardless of whether such enforceability is
considered in equity or at law).
Section 7.3 NO CONFLICT. Neither the execution and delivery of this
Agreement or any of the other documents contemplated hereby by BMEI nor the
consummation of the transactions contemplated hereby or thereby will (a)
conflict with, result in a breach or violation of or constitute (or with notice
or lapse of time or both constitute) a default under, (i) the Articles or
Memorandum of Association of BMEI or (ii) any statute, regulation, order,
judgment or decree or any instrument, contract or other agreement to which BMEI
is a party or by which BMEI is subject or bound; (b) result in the creation of,
or give any party the right to create, any Lien upon the Contributed Fixed
Assets; (c) terminate or modify, or give any third party the right to terminate
or modify, the provisions or terms of any Assumed Contract; or (d) require BMEI
to obtain any authorization, consent, approval or waiver from, or to make any
filing with, any Governmental Entity or to obtain the approval or consent of any
other Person.
Section 7.4 TITLE TO AND CONDITION OF THE CONTRIBUTED FIXED ASSETS. The JV
will have, good and marketable title to all of the Contributed Fixed Assets,
free and clear of any Liens, except (i) those accepted by the JV which are set
forth on SCHEDULE 7.4 hereto and (ii) liens which will be removed at Closing.
Section 7.5 LITIGATION. There is no action, suit, proceeding or, to BMEI's
knowledge, investigation, at law or in equity or otherwise in, before or by any
court or governmental board, commission, agency, department or office, or
private arbitration tribunal pending or, to BMEI's knowledge, threatened by or
against BMEI that relates to the Business or the Contributed Fixed Assets.
Section 7.6 PERSONNEL IN THE KINGDOM OF JORDAN. SCHEDULE 7.6 comprises a
complete and correct list of the names, titles, length of employment or service
and current annual salary rates and all other compensation and fringe benefits
of each of the employees in the Kingdom of
Jordan who will be transferred to the JV. Except as set forth on SCHEDULE 7.6,
none of such personnel is a party or subject to any oral or written employment,
bonus, pension, profit-sharing, deferred compensation, percentage compensation,
employee benefit (including without limitation, medical disability, life
insurance and other welfare benefit plans), incentive, pension or retirement
plans, fringe benefit or termination or severance agreements, plans or
commitments other than those mandated by applicable law.
VIII. COVENANTS
Section 8.1 FILINGS AND AUTHORIZATIONS. Each of BMEI, Cygne and the JV, as
promptly as practicable, (i) will make, or cause to be made, all filings and
submissions required under laws, rules and regulations applicable to it, or to
its subsidiaries and affiliates, as may be required for it to consummate the
transactions contemplated hereby; (ii) will use its reasonable efforts to
obtain, or cause to be obtained, all authorizations, approvals, consents and
waivers from all Persons and governmental or public authorities or bodies
necessary to be obtained by it, or any subsidiaries or affiliates, in order for
it so to consummate such transactions, including without limitation; and (iii)
will use its reasonable efforts to take, or cause to be taken, all other actions
necessary, proper or advisable in order for it to fulfill its obligations
hereunder. BMI, Cygne and the JV will coordinate and cooperate with one another
in exchanging information and supplying such reasonable assistance as may be
reasonably requested by each in connection with the foregoing. BMEI and Cygne
shall use their reasonable efforts to assist the JV in obtaining all consents
required under the Assumed Contracts as a result of this Agreement and the
transactions contemplated hereby.
Section 8.2 PUBLIC ANNOUNCEMENTS. Unless and to the extent required by law,
each party hereto will agree in advance prior to the issuance by either of any
press release or the making of any public statement with respect to this
Agreement and the transactions contemplated hereby and shall not issue any such
press release or make any such public statement without the agreement of the
other party. In the event that either party is required to issue a press release
or make a public statement by law, it will notify the other party of the
contents thereof in advance of the issuance or making thereof. Notwithstanding
the foregoing, BMEI understands, acknowledges and agrees that Cygne Designs,
Inc. is a publicly-traded company and, as such, may be required to disclose this
transaction and the terms hereof by a filing with the Securities and Exchange
Commission and the issuance of a press release. To the extent possible, Cygne
will give BMEI prior notice of, and an opportunity to review, any such
disclosure.
Section 8.3 BROKERS. Each party shall pay all fees and commissions of any
broker, finder, investment banker or other similar intermediary to which it is
obligated to pay any fee or commission in connection with the transactions
contemplated by this Agreement and shall indemnify and hold harmless the other
party from and against any such fee or commission and any damage, loss, cost,
expense or liability (including reasonable attorneys' fees) resulting therefrom.
IX. MISCELLANEOUS
Section 9.1 EXPENSES. Each party to this Agreement shall pay its own costs
and expenses (including all legal and accounting fees incurred by it) relating
to this Agreement, the negotiations leading up to this Agreement and the
transactions contemplated by this Agreement.
Section 9.2 AMENDMENT. This Agreement shall not be amended or modified
except by a writing duly executed by Seller, the Stock Sellers and Purchaser
indicating an intention to amend this Agreement.
Section 9.3 ENTIRE AGREEMENT. This Agreement, including the Appendix and
Schedules hereto and the other instruments, agreements and documents delivered
pursuant to this Agreement or in connection with the Closing, contains all of
the terms, conditions and
representations and warranties agreed upon by the parties relating to the
subject matter of this Agreement and supersedes all prior agreements,
negotiations, correspondence, undertakings and communications of the parties,
oral or written, respecting such subject matter.
Section 9.4 HEADINGS. The headings contained in this Agreement are intended
solely for convenience and shall not affect the rights of the parties to this
Agreement.
Section 9.5 NOTICES. All notices, requests, demands and other
communications made in connection with this Agreement shall be in writing and
shall be deemed to have been duly given (a) on the date of delivery, if
delivered to the persons identified below, (b) seven calendar days after mailing
if mailed, with proper postage, by certified or registered mail, air mail
postage prepaid, return receipt requested, addressed as follows:
IF TO CYGNE:
Cygne Designs, Inc.
0000 Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chairman
IF TO BMEI:
Boscan Middle East Investments Limited
000 Xxxxxxxxx Xxxxx
1 Science Museum Road
Tsim Sha Tsui
Kowloon
Attention: Xxxxxxx Xxxxx
or (c) on the date of receipt if sent by telex or telecopy, and confirmed in
writing in the manner set forth in (b) on or before the next day after the
sending of the telex or telecopy. Such addresses and numbers may be changed,
from time to time, by means of a notice given in the manner provided in this
Section.
Section 9.6 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to this Agreement to the
extent possible. In any event, all other provisions of this Agreement shall be
deemed valid and enforceable to the full extent possible.
Section 9.7 WAIVER. Waiver of any term or condition of this Agreement by
any party shall only be effective if in writing and shall not be construed as a
waiver of any subsequent breach or failure of the same term or condition, or a
waiver of any other term or condition of this Agreement.
Section 9.8 COUNTERPARTS. This Agreement may be signed in two or more
counterparts with the same effect as if the signatures to each counterpart were
upon a single instrument, and all such counterparts together shall be deemed an
original of this Agreement.
Section 9.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the Hashemite Kingdom of Jordan.
Section 9.10 THIRD PARTIES. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person other than the parties hereto and their
successors or assigns any rights or remedies under or by reason of this
Agreement.
Section 9.11 BINDING EFFECT; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, successors and permitted assigns,
but except as contemplated herein, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned, directly or indirectly, by
Cygne or BMEI without the prior written consent of the other party hereto.
Section 9.12 ARBITRATION. Any dispute, controversy or claim arising out of
or in connection with or relating to this Agreement, any breach or alleged
breach hereof, or the transaction contemplated hereby, shall be resolved and
settled by arbitration by three arbitrators. Within fifteen (15) days after
written demand for arbitration is sent by one party to the other, the parties
shall each select one arbitrator, and the two arbitrators so selected shall
select a third arbitrator. The parties shall endeavour to complete arbitration
within 60 days after delivery of written notice demanding arbitration. The
decision of the arbitrators shall be binding and conclusive upon the parties.
Judgment upon any award rendered by the arbitrators may be entered in any court
having jurisdiction. Any such arbitration shall be held in Amman, The Hashemite
Kingdom of Jordan The expense of arbitration shall be borne equally by the
parties to the arbitration and each party shall bear and pay for the cost of its
own experts, witnesses, evidence, counsel and other costs in connection with the
preparation and presentation of its case; provided, however, in the event either
party alleges fraud or that the position of the other party is not supportable
in good faith, and the arbiters find that such fraud or bad faith exists, the
arbiters shall be free to award costs in such arbiters' discretion.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the date set forth above.
BOSCAN MIDDLE EAST INVESTMENTS LIMITED
By: /s/ Xxxxxxx Xxxxx
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CYGNE DESIGNS, INC.
By: /s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx, Chairman
