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JOINT VENTURE AGREEMENT

Joint Venture JV Agreement

JOINT VENTURE AGREEMENT | Document Parties: AMERICAN RAILCAR INDUSTRIES, INC./DE | AMTEK TRANSPORTATION SYSTEMS LIMITED You are currently viewing:
This Joint Venture JV Agreement involves

AMERICAN RAILCAR INDUSTRIES, INC./DE | AMTEK TRANSPORTATION SYSTEMS LIMITED

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Title: JOINT VENTURE AGREEMENT
Governing Law: Delaware     Date: 6/20/2008
Industry: Railroads     Sector: Transportation

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Exhibit 10.54
EXECUTION COPY
JOINT VENTURE AGREEMENT
by and between
AMTEK TRANSPORTATION SYSTEMS LIMITED
and
AMERICAN RAILCAR MAURITIUS II
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
Joint Venture Agreement    

 


 
This Joint Venture Agreement is made by and between
American Railcar Mauritius II, a company incorporated under the laws of Mauritius, having its registered office at C/o Kross Border Trust Services Limited Manor House, 1st Floor; Cnr St George/Chazal Streets; Port Louis, Mauritius
- Hereinafter referred to as “ ARI Member ” -
and
Amtek Transportation Systems Limited, a company incorporated under the provisions of the Companies Act, 1956 of the Republic of India (“ India ”), having its registered office at 3, Local Shopping Complex, Pamposh Enclave, Greater Kailash-I, New Delhi 110048, India.
- Hereinafter referred to as “ AMTEK Member ” -
AMTEK Member and ARI Member are sometimes together hereinafter referred to as the “ Parties ” and individually as a “ Party ”.
WHEREAS ARI Member is an indirect, wholly-owned subsidiary of American Railcar Industries, Inc. (“ ARI ”), a company incorporated under the laws of the State of Delaware, having its principle executive office at 100 Clark St., St. Charles Missouri, 63301-2075, United States of America (“ U.S .”); and
WHEREAS ARI is engaged in the business of designing and manufacturing railcars and also repairs and refurbishes railcars, provides fleet management services and designs and manufactures certain railcar and industrial components used in the production of its railcars, as well as railcar and non-railcar industrial products produced by others; and
WHEREAS AMTEK Member is a wholly-owned subsidiary of AMTEK AUTO LIMITED (“ AMTEK ”), a company incorporated under the provisions of the Companies Act, 1956 of the Republic of India (“ India ”), having its registered office at 16 Rozka Meo Industrial Estate, Sohna, District Gurgaon, Haryana, India; and
WHEREAS AMTEK is a market leader in the manufacture of a variety of fully finished automotive components and assemblies for use in engine/drivetrain, transmission and suspension systems for the global automotive industry and is recognized in the global automotive industry as the largest manufacturer of flywheel stub axles and flywheel assemblies for automotive and other engine applications, and enjoys a preferred supplier status with most of its customers; and
WHEREAS the Parties desire to establish a joint venture company in India in accordance with the terms and conditions of this Joint Venture Agreement and the applicable provisions of the Companies Act, 1956 of India.
NOW THEREFORE , the Parties agree as follows:
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
Joint Venture Agreement: EXECUTION COPY   Page 1 

 


 
Article 1 Definitions
Except where the context otherwise requires, the following terms and phrases shall have the meanings set forth below:
1.   Acceptance Notice ” is defined in Article 13.3.
 
2.   Acceptance Period ” is defined in Article 13.3.
 
3.   Affected Party ” is defined in Article 25.
 
4.   Affiliate ” of a Person (as defined below) means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such Person; provided, however, that:
  (i)   the JVC (as defined below) and its subsidiaries, if any, shall not be considered Affiliates of ARI or AMTEK or any of their respective Affiliates; and
 
  (ii)   solely for the purposes of Articles 3.3 and 14.1(b):
  (a)   an “Affiliate” of ARI Member means only ARI and Persons controlled by ARI;
 
  (b)   an “Affiliate” of ARI means only Persons controlled by ARI;
 
  (c)   an “Affiliate” of AMTEK Member means only AMTEK and Persons controlled by AMTEK; and
 
  (d)   an “Affiliate” of AMTEK means only Persons controlled by AMTEK;
      For the purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person through the ability to control the composition of greater than 50% of the voting power of the board of directors (or other applicable body performing a similar function) of that Person, by ownership of greater than 50% of the share capital of that Person, by ownership of greater than 50% of the voting rights of that Person, through contract rights or otherwise.
5.   AMTEK ” is defined in the preamble hereto.
 
6.   AMTEK Member ” is defined in the preamble hereto.
 
7.   Annual Budget ” means the annual operating and capital budgets of the JVC for the coming financial year, prepared each year under the direction and guidance of the GM (as defined below) and the other Executive Officers (as defined below) of the
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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    JVC, and approved (with or without amendment) by the Board of Directors (as defined below).
 
8.   Approved Bank ” is defined in Article 8.1.
 
9.   Arbitration Board ” is defined in Article 24.1.
 
10.   ARI ” is defined in the preamble hereto.
 
11.   ARI Member ” is defined in the preamble hereto.
 
12.   Articles of Association ” means the Articles of Association of the JVC in the form set out in Annex I, as such Articles of Association may be amended or restated from time to time in accordance with the provisions of this JVA and the Companies Act (as defined below).
 
13.   Auditor ” means the statutory auditor of the JVC, and shall be appointed by the mutual consent of the Parties from any one of the following international audit firms, operating in India or their Indian Affiliates:
  (i)   KPMG, India; or
 
  (ii)   Ernst & Young India, or
 
  (iii)   PricewaterhouseCoopers, India.
14.   Authorized Persons ” is defined in Article 15.3.
 
15.   Board ” or “ Board of Directors ” means the board of directors of the JVC.
 
16.   Breaching Party ” is defined in Article 28.1.
 
17.   Business ” is defined in Article 2.2.
 
18.   Business Day ” means a day (other than Saturday, Sunday or statutory holiday) on which banks are open for normal business both in New York City, U.S. and Delhi, India.
 
19.   Business Plan ” means the rolling three (3) to five (5) year business forecast of the JVC, prepared each year under the direction and guidance of the GM and the other Executive Officers of the JVC, and approved (with or without amendment) by the Board of Directors.
 
20.   Capital Contribution ” is defined in Article 5.7.
 
21.   Cash Call ” is defined in Article 5.7.
 
22.   Claims ” is defined in Article 6.6.
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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23.   Companies Act ” means the (Indian) Companies Act, 1956 (Act 1 of 1956).
 
24.   Competitor ” means any Person, or an Affiliate of such Person, which directly or indirectly (and in any manner or capacity) competes in or is in competition with, at the relevant time, the railroad industry business (including designing and manufacturing railcars, repairing and refurbishing railcars, providing fleet management services and designs, leasing railcars, manufacturing railcar and industrial components used in the production of railcars) then being conducted or carried on by the respective Party or its Affiliates, and/or the JVC, as the context requires.
 
25.   Confidential Information ” means, all and any prints, drawings, samples, knowledge, technology, know-how, show-how, processes, plans, data, books, reports, records, correspondence, notes, compilations, studies, analyses, summaries and other information (including customer and/or competitor information, market information, business plans and other information regarding technical, administrative, operational, economic, legal, financial or other affairs), whether of a proprietary nature or not, disclosed (whether in writing, verbally or by any other means or format and whether directly or indirectly) by a Disclosing Party (as defined below) to a Receiving Party (as defined below), in connection with the business of the Parties, the JVC or otherwise, including in relation to this JVA (or its performance) or any agreement in furtherance of the performance of this JVA, and whether or not such information is identified as confidential, secret, proprietary or in some other similar fashion. The following information shall not, however, be considered as Confidential Information under this JVA:
  §   any information which, at the date of this JVA or at any time after the date of this JVA, comes into the public domain other than through a breach of the provisions of Article 21 by the Receiving Party (or its Affiliates);
 
  §   any information which can be shown by the Receiving Party by documentary evidence to have been known by the Receiving Party (or its Affiliates) prior to its disclosure by the Disclosing Party to the Receiving Party, provided that such knowledge does not result from a disclosure under a previous confidentiality or non-disclosure agreement;
 
  §   any information which subsequently comes lawfully into the possession of the Receiving Party (or its Affiliates) from a third party, provided that the Receiving Party (or its Affiliates) was not aware that such third party was not entitled to receive and disclose such information; and
 
  §   any information which is acquired, conceived, discovered or developed by the Receiving Party (or its Affiliates) completely independently of any information provided by the Disclosing Party, and can be so proved by the Receiving Party by documentary evidence.
26.   Deadlock Event ” is defined in Article 15.2.
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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27.   Deadlock Notice ” is defined in Article 15.2.
 
28.   Deadlock Response ” is defined in Article 15.4.
 
29.   Deadlock Sale Price ” is defined in Article 15.5.
 
30.   Defaulting Party ” is defined in Article 23.2.
 
31.   Director ” or “ Directors ” mean(s) a member or members of the Board of Directors, duly elected or appointed either at a meeting of the Board or at a general (Shareholders’) meeting or otherwise in accordance with the provisions of this JVA and/or the Companies Act, and includes alternate Directors and additional Directors.
 
32.   Disclosing Party ” is defined in Article 21.1.
 
33.   Distribution ” or “ Distributions ” mean(s) any payment or payments by the JVC to the Shareholders, in cash or in kind, of assets of the JVC (including the profits available for distribution in accordance with applicable law), by way of dividends or otherwise, and any share buy-backs by the JVC, as the same may be authorized from time to time.
 
34.   Encumbrances ” mean and include an interest or equity of any Person (including any right to acquire, option or right of pre-emption) or any mortgage, hypothecation, title defect, voting agreement, restriction of any nature, charge, pledge, lien, assignment, non-disposal undertaking or any other encumbrance, priority, security interest or arrangement of whatsoever nature or kind over or in respect of the relevant property.
 
35.   Event of Default ” is defined in Article 23.1.
 
36.   Executive Officers ” mean the GM and the other executive officers of the JVC appointed by the Board.
 
37.   Facility ” is defined in Article 2.2.
 
38.   Fair Market Value ” means the value of the Shares (as defined below) determined, in case of (i) transfer of unlisted Shares from a Resident (defined below) to a Non-Resident (defined below), under a fair valuation conducted by the Independent Appraiser in accordance with the guidelines for the valuation of shares issued by the erstwhile Controller of Capital Issues; (ii) transfer of unlisted Shares from a Non-Resident to a Resident, a price which is the lower of two independent valuations of the Shares, one by the JVC’s Auditor, and the other by the Independent Appraiser or by a Merchant Banker in Category I registered with the Securities and Exchange Board of India; or otherwise in accordance with the applicable guidelines prescribed by the Reserve Bank of India or any other Government (as defined below) authority having jurisdiction, as the case may be, regarding transfers of shares from Non-
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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    Residents to Residents or from Residents to Non-Residents, and prevailing at the time of the determination of the value of the Shares.
 
39.   FCPA ” is defined in Article 22.2(f).
 
40.   Free Sale Period ” is defined in Article 13.3.
 
41.   General Manager ” or “ GM ” means the individual appointed by the Board as being “in charge” of the day-to-day business and affairs of the JVC, in accordance with the provisions of this JVA. The GM shall not be a member of the Board.
 
42.   Government ” means the Government of India and/or any State Government of India, as the case may be, and includes any departments, authorities, agencies and any other statutory or administrative instrumentality of such Government(s).
 
43.   Holding Company ” is defined in Article 13.1.
 
44.   Holding Shares ” is defined in Article 13.1.
 
45.   Identified Affiliate ” is defined in Article 13.3.
 
46.   Indemnified Parties ” is defined in Article 28.1.
 
47.   Indemnitees ” is defined in Article 28.1.
 
48.   Indian GAAP ” means generally accepted accounting principles in India, consistently applied.
 
49.   Independent Appraiser ” means any one of the following international accounting firms, operating in India or their Indian Affiliates and having expertise in the railroad industry, who shall be chosen by both Parties for the purpose of ascertaining the Fair Market Value of the Shares and/or the Deadlock Sale Price (as the case may be); provided that in no case shall the firm acting as the Independent Appraiser at any given point in time also then be serving as the Auditor of the JVC:
  (i)   KPMG, India; or
 
  (ii)   Ernst & Young India, or
 
  (iii)   Deloitte Touche Tohmatsu, India; or
 
  (iv)   PricewaterhouseCoopers, India.
 
  If fifteen (15) Business Days have lapsed after either Party has proposed an Independent Appraiser and the Parties are not in mutual agreement, then the Auditor of the JVC shall select the Independent Appraiser from among the firms proposed by the Parties. The Independent Appraiser shall act as an expert and not as an arbitrator, and
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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      the Parties undertake to cooperate with the Independent Appraiser to determine such Fair Market Value and/or Deadlock Sale Price (as the case may be).
50.   Independent Appraiser Deadlock Notice ” is defined in Article 15.4
 
51.   “Initial Share Capital” is defined in Article 5.2.
 
52.   Initiating Party ” is defined in Article 15.4.
 
53.   Intending Purchaser ” is defined in Article 13.3.
 
54.   Intending Purchaser Price ” is defined in Article 13.1.
 
55.   IPRs ” is defined in Article 17.
 
56.   Joint Venture Agreement ” or “ JVA ” means this agreement, together with its annexes, and includes any modifications, amendments, additions or deletions hereto or thereto mutually made in writing and signed by the Parties after the date of this JVA.
 
57.   JV Sale Shares ” is defined in Article 13.1.
 
58.   JVC ” means the Joint Venture Company established pursuant to this JVA.
 
59.   Maximum Share Capital ” is defined in Article 5.2.
 
60.   Memorandum of Association ” means the Memorandum of Association of the JVC in the form set out in Annex II, as such Memorandum of Association may be amended or restated from time to time in accordance with the provisions of this JVA and the Companies Act.
 
61.   Name ” is defined in Article 4.4.
 
62.   Negotiation Period ” is defined in Article 15.3.
 
63.   Non-Breaching Party ” is defined in Article 28.1.
 
64.   Non-Defaulting Party ” is defined in Article 23.2.
 
65.   Non-Initiating Party ” is defined in Article 15.4.
 
66.   Non-Paying Shareholder ” is defined in Article 5.8.
 
67.   Non-Resident ” means a “person resident outside India” as such term is defined under the (Indian) Foreign Exchange Management Act, 1999.
 
68.   Offer Notice ” is defined in Article 13.3.
 
69.   Original Director ” is defined in Article 6.4.
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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70.   Paying Shareholder ” is defined in Article 5.8.
 
71.   Person ” means and includes any individual, firm, partnership, company or other body corporate, government, state or agency of a state, local or municipal authority or government body, or any joint venture or other association (whether or not having a separate legal personality).
 
72.   Products ” means railroad freight wagons (“ Railcar Products ”) and their components (“ Component Products ”,) and such other products and related services as may be mutually agreed by the parties in writing from time to time.
 
73.   Receiving Party ” is defined in Article 21.1.
 
74.   Remaining Party Shares ” is defined in Article 13.3.
 
75.   Remaining Party ” is defined in Article 13.3.
 
76.   Resident ” means a “person resident in India” as such term is defined under the (Indian) Foreign Exchange Management Act, 1999.
 
77.   Rules ” is defined in Article 24.1.
 
78.   Sale and Purchase Deadlock Notice ” is defined in Article 15.4.
 
79.   Sale and Purchase Deadlock Period ” is defined in Article 15.4.
 
80.   Selling Shareholder ” is defined in Article 13.3.
 
81.   Share ” or “ Shares ” mean(s) an equity share or equity shares in the Share Capital of the JVC.
 
82.   Share Capital ” means the issued and paid-up equity share capital of the JVC as stated in Article 5.2.
 
83.   Shareholders ” mean and include the Parties to this JVA and all other Persons who validly acquire Shares in accordance with this JVA and the Articles of Association.
 
84.   Target Market ” means India, and upon mutual consent of the Parties expressed in writing, specified countries in South East Asia, and the Middle East.
 
85.   Third Party Sale Shares ” is defined in Article 13.1.
 
86.   U.S. GAAP ” means generally accepted accounting principles in the U.S., consistently applied.
Unless otherwise stated or the context otherwise requires, in this JVA:
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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  (a)   words importing the singular number include the plural number, and vice-versa and words denoting any gender shall include all genders;
 
  (b)   the words “hereof”, “herein”, “hereto”, “hereunder” and words of similar import refer to this JVA as a whole and not to any particular provision of this JVA;
 
  (c)   the titles, headings of Articles and other portions hereof are for convenience of reference only, are not intended to be complete or accurate descriptions of the contents thereof, and shall not be deemed to be a part of this JVA or be taken in consideration in the interpretation or construction of this JVA;
 
  (d)   references herein to Articles and Annexes are references to the Articles of and Annexes to this JVA;
 
  (e)   references herein to documents includes modifications, amendments, variations and replacements thereof and supplements thereto made in writing and signed by both Parties;
 
  (f)   references herein to statutes and other legislation includes re-enactments and amendments thereof, rules, regulations and any subordinate or subsidiary legislation made under any such statute or other legislation, as in force as of the applicable date or period of time;
 
  (g)   references herein to a Party includes its permitted assigns, permitted transferees and successors-in-title; and
 
  (h)   where a particular word or term is defined herein, other grammatical forms of such word or term shall have a corresponding meaning.
 
  (i)   The terms referred to in this JVA, unless defined otherwise or unless inconsistent with the context or meaning thereof, shall bear the same meaning as defined under the relevant statute/legislation.
 
  (j)   Any reference to ‘writing’ includes printing, typing, emails, and other means of reproducing words in visible form. All approvals and/or consents to be granted by the Parties under this JVA shall be deemed to mean approvals and/or consents in writing.
 
  (k)   whenever any provision of this JVA uses the term “including” (or “includes”), such term shall be deemed to mean “including without limitation” and “including but not limited to” (or “includes without limitations” and “includes but is not limited to”) regardless of whether the words “without limitation” or “but not limited to” actually follow the term “including” (or “includes”).
 
  (l)   A reference to conduct includes, an omission, statement or undertaking whether or not in writing.
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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  (m)   For purpose of this JVA, wherever used, the term “knowledge” means such Party’s actual knowledge after due and diligent inquiries by such Party or by officers and directors of such Party reasonably believed to have knowledge of the matter in question.
Article 2 Purpose of this JVA; Business of the JVC
     2.1 Purpose of this JVA/Business Objectives
The purpose of this JVA is to set forth the terms and conditions under which the JVC will be incorporated in accordance with Indian laws, and the manner in which the Parties shall organise and manage the affairs of the JVC and matters arising therefrom and incidental thereto.
In addition to the scope of business and market of the JVC set out in Article 2.2, the business objectives of the JVC shall also include:
  (a)   maximizing profitability and creating sustainable growth;
 
  (b)   maintaining and enhancing value for the Shareholders; and
 
  (c)   as quickly as reasonably possible, maintaining positive cash flows from operations in accordance with the Business Plan.
     2.2 Scope of Business and Market of the JVC
The scope of the business of the JVC (the “Business" ) shall be to:
  (a)   acquire or lease real property and the other assets necessary for the purpose of constructing a manufacturing facility (the “ Facility ”); and
 
  (b)   to engineer, develop, manufacture, distribute, sell and otherwise supply the Products in the Target Market and to operate the Business and to exercise all powers and engage in all activities incident thereto; and
 
  (c)   to engineer, develop, manufacture, distribute, sell and supply Component Products for the use of ARI or any of its Affiliates from time to time at the sole discretion of ARI Member; and
 
  (d)   without limiting the foregoing, but subject to the provisions of this JVA, the JVC may enter into such arrangements, including the formation of subsidiaries and the transfer of its properties to and from such subsidiaries, in such form and manner as the Board of Directors or Shareholders (as applicable) deems appropriate.
The implementation of the above business activities of the JVC will take place in steps pursuant to the Business Plan(s) and Annual Budget(s) approved by the Board of Directors in accordance with this JVA.
     
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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Other than with respect to Article 2.2(c), the JVC shall sell the Products to Indian Railways and other customers in the Target Market only, and not (without the prior written consent or approval of the respective Party, which can be withheld for any reason or for no reason) to any Competitor of either of the Parties or their respective Affiliates. With respect to Article 2.2(c), the competitive basis for the manufacture, sale and supply of Component Products to ARI or any of its Affiliates shall be on an “arm’s length” basis, with pricing being not less favourable than the pricing offered to any other customer for products of the like grade (type), quantity and quality, as determined by the Board of Directors of the JVC.
Article 3 Reimbursement of Expenses, Deputed Employees and Non-Employment
     3.1 Reimbursement of Expenses
The Parties have (prior to the incorporation of the JVC) or will continue to incur, on behalf of the JVC, the types of expenses as listed in Annex III relating to the establishment of the JVC and the implementation of this JVA by the JVC (in accordance with the approved Business Plan(s) and Annual Budget(s)). The Parties agree that such expenses shall be reimbursed by the JVC to the Parties under the conditions that such expenses must be (i) properly substantiated by the Party concerned, and (ii) approved by the Board of Directors.
It is agreed by the Parties that such approval shall not be unreasonably withheld by the Board of Directors. Such expenses shall include only those incurred for the benefit of JVC and shall not include expenses incurred for the sole benefit of either (or both) of the Parties.
Each Party shall bear its own costs and expenses (including legal fees and expenses) in connection with the negotiation, preparation, execution and delivery of this JVA (and any other ancillary documents).
     3.2 [Reserved]
     3.3 Non-Employment
During the term of this JVA and for a period of twelve (12) months after this JVA ceases to apply to ARI Member, neither ARI Member nor its Affiliates shall, directly or indirectly, offer employment or engage the services of any of the employees of the JVC in any capacity, without the prior written consent of the JVC. For greater certainty, the foregoing restrictions shall not apply to any ARI employees deputed to the JVC.
During the term of this JVA and for a period of twelve (12) months after this JVA ceases to apply to AMTEK Member, neither AMTEK Member nor its Affiliates shall, directly or indirectly, offer employment or engage the services of any of the employees of the JVC in any capacity, without the prior written consent of the JVC. For greater certainty, the foregoing restrictions shall not apply to any AMTEK employees deputed to the JVC.
         
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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Article 4 The Joint Venture Company
     4.1 Form of the JVC
The JVC shall be incorporated and organized and shall exist as a private company limited by shares in accordance with the provisions of the laws of India.
The Parties hereto will jointly cause the incorporation of the JVC, for the purpose stated in this JVA within thirty (30) days from the date of this JVA or such other time as may be mutually agreed by the Parties, and each Party shall render all necessary assistance to the other Party to incorporate the JVC.
     4.2 Location of Registered Office
The registered office of the JVC shall be located at 3 LSC, Pamposh Enclave, Greater Kailash Part – 1, New Delhi – 110048, India or such other location as may be mutually agreed by the Parties.
     4.3 Location of Facility of the JVC
The Facility will be established at a mutually agreeable location at Alwar district, Rajasthan, India or such other location as may be mutually agreed by the Parties.
The Parties agree that any premises (including land and building) identified from time to time for the operations of the JVC will be subject to the prior approval of both Parties. Such approval may, at either Party’s option, include due diligence investigations of the site, facility and infrastructure related to the premises, as well as the completion of a satisfactory environmental audit conducted on the premises.
     4.4 Corporate Name
The name of the JVC shall be “Amtek Railcar Limited” or such other name as may be mutually agreed by the Parties and approved by the concerned Registrar of Companies.
The Parties hereby acknowledge that the name “Amtek” (and the trademarks, logos and goodwill associated therewith) is owned by and belongs to AMTEK. AMTEK Member represents and warrants on behalf of AMTEK that the limited license to use the name “Amtek” (and the trademarks, logos and goodwill associated therewith) as part of the corporate name of the JVC has been agreed to be granted herein by AMTEK to the JVC.
The use of the name “Amtek” belonging to AMTEK (hereinafter the “ Name ”) as part of the JVC’s corporate name shall not (i) create in the JVC any right, title or interest in the Name, or (ii) grant or permit the JVC any right to use such Name, either alone or in combination, for any purpose other than its corporate name as contemplated by this JVA. All rights, title and interest in the Name belongs to AMTEK, and the JVC shall not at any time do or cause any act or thing to be done, either directly or indirectly, to contest, impair or invalidate any such respective rights, title and interest of AMTEK in the Name (and the trademarks, logos and goodwill associated therewith).
         
Initials of Authorized Representative of ARI Member         Initials of Authorized Representative of AMTEK Member      
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Should (i) AMTEK Member cease, at any time and for any reason whatsoever, to be a Party to this JVA and/or to be a Shareholder, (ii) the voting rights of AMTEK Member in the JVC fall below twenty-six percent (26%), (iii) this JVA be terminated, or (iv) at Amtek Member’s request if Amtek Member’s voting rights in the JVC fall below fifty percent (50%), the Parties shall cause the JVC, as soon as reasonably practicable, to change its name so as to remove from it any reference to “Amtek”, and to cease any corresponding use of the trademarks or logos associated therewith, and ARI Member undertakes to cause the JVC to do whatever will be necessary to such effect. The JVC shall thereafter no longer use “Amtek” in the JVC’s corporate name and shall cease any corresponding use of the trademarks or logos associated therewith in connection with its business.
The JVC shall not, except at the request of AMTEK and/or AMTEK Member, take any action in any court, administrative agency or otherwise, to prevent any infringement, imitation or illegal or unauthorized use of the Name (or its corresponding trademarks or logos) by any Person. It is agreed that such actions fall wholly within the authority of AMTEK and/or AMTEK Member, as the case may be, as the sole owner(s) of their respective Names. The JVC shall, however, promptly inform AMTEK and/or AMTEK Member of any infringement, imitation or illegal or unauthorized use of the Name (or its corresponding trademarks or logos) which comes to its knowledge.
     4.5 Memorandum of Association and Articles of Association
  (a)   The Memorandum of Association and Articles of Association of the JVC shall, to the extent permissible by the Companies Act, be fully consistent with and incorporate the substantive provisions of this JVA (to the extent that such provisions may be properly contained in the Memorandum of Association and/or Articles of Association, as the case may be).
 
  (b)   If, at any time or from time to time, there is any ambiguity, inconsistency or discrepancy between this JVA and the Memorandum of Association or Articles of Association, the Parties shall, to the extent permissible by the Companies Act, take all actions necessary or advisable as promptly as practicable after the discovery of such inconsistency or discrepancy, to amend the Memorandum of Association and/or Articles of Association, as the case may be, so as to conform with this JVA, and pending such amendment, the provisions of this JVA shall prevail as between the Parties and shall be enforceable as the personal rights and obligations of the Parties.
 
  (c)   The Articles of Association shall specify the names of the first Directors to hold office until the first general annual meeting (unless they are removed at an earlier point in time in accordance with this JVA).
         
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     4.6 Covenants of the Parties
Each Party confirms to and covenants with the other as follows:
  (a)   this JVA shall operate and be effective as embodying the personal rights, obligations and duties of each Party and shall be enforceable as such by and between the Parties; and
 
  (b)   to achieve the intention and objective outlined in (a) above, each Party will cause its Affiliates (as defined in Article 1 as applicable) to abide by this JVA to the extent required.
Article 5 Capital Structure
     5.1 Authorized Share Capital
The authorized Share Capital of the JVC is Rupees One hundred and Fifty million (INR 150,000,000) divided into Fifteen million (15,000,000) Shares of Rupees ten (INR 10) each, ranking pari passu in all respects.
The authorized Share Capital may be increased from time to time as needed by the business requirements of the JVC, subject to the prior approval thereof by the Shareholders in accordance with the provisions of this JVA and in compliance with the applicable requirements of the Companies Act.
     5.2 Issued Share Capital
(a)   Initial Share Capital . Upon execution of this JVA, the JVC shall take such steps as requested by ARI Member, in its sole discretion, to ensure that the initial Share Capital of the JVC shall be as set forth in Annex VI (the “Initial Share Capital” ). The Initial Share Capital shall be subscribed and paid for by each Party in the amount set forth opposite each Party’s name in Annex VI under the heading “Initial Share Capital” at a premium of Rupees ninety (Rs. 90) per Share, in accordance with Annex VI and the shareholding ratio set forth in Article 5.3 within sixty (60) Business Days following the establishment of a bank account by the JVC, or such earlier date as the Parties may mutually agree. The JVC shall open a bank account within seven (7) days of the date of this JVA. The JVC shall procure that, within a period of seven (7) Business Days from the date of receipt of the share subscription consideration from both the Parties, a meeting of the Board is convened and the Shares allotted to the Parties. The share certificates representing the fully paid-up Shares subscribed by the Parties shall be handed over to the Parties within seven (7) Business Days of such Board meeting. The share certificate/s in respect of the Shares subscribed by the Parties shall be in the form of jumbo certificates. Thereafter, the certificate/s may be split/consolidated upon being so requested by the Parties in writing at no extra cost. The JVC shall, at the initial meeting of the Board of Directors of the JVC, resolve to have the name of the Parties entered in the Register of Members of the JVC in respect of the Shares issued and allotted to the Parties by the JVC and to make all necessary filings with the concerned regulatory authorities.
         
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    Immediately after the initial Board meeting and passing of the resolutions mentioned above, the Parties shall ensure that the JVC records the entries in the registers, and carries out all the actions that have been resolved to be carried out in this Article 5.2, in order to effectively achieve closing of the Initial Share Capital including making necessary filings with the Registrar of Companies, Authorized Dealer and the Reserve Bank of India. The JVC shall deliver copies of such forms, reports and documents to the Parties on the completion of all such filings. The JVC shall ensure that all forms, reports and documents to be filed and / or delivered under this Article are in the prescribed format, are accurately completed and are accompanied by all the required documents.
 
    Upon payment (in cash) of the respective Share subscription amounts to the bank account of the JVC by the Parties, the JVC shall allot and issue Shares to each Party, credited as fully paid-up, and the initial shareholding structure of the JVC shall be as set forth in Annex VI .
 
(b)   Additional Share Capital . Following the contribution of the Initial Share Capital by the Parties, additional Share Capital shall be subscribed for, paid by and issued to the Parties, in accordance with the shareholding ratio set forth in Article 5.3, simultaneously to each of the Parties at the time or times prescribed by the Board of Directors pursuant to Article 5.7, up to each Party’s Maximum Share Capital (as defined below).
 
    Notwithstanding anything to the contrary contained in this JVA and unless otherwise specifically agreed by the Parties in writing, and as required, by resolution of the Board of Directors, the total capital contributions in the Share Capital of the JVC that shall be made by the Parties (including premium paid on Shares) shall be as set forth opposite each Party’s name in Annex VI under the heading “Maximum Share Capital” (the “Maximum Share Capital” ). Notwithstanding anything to the contrary contained in this JVA, the Parties shall only be obliged to make capital contributions up to their respective Maximum Share Capital contribution as and when called for by the Board in accordance with Article 5.4 and/or Article 5.7.
 
    Immediately after any valid changes to the shareholdings of the JVC or any valid amendments to the Maximum Share Capital, as hereinafter provided, the Parties agree to amend Annex VI to reflect the then current shareholding structure of the JVC and/or the revised Maximum Share Capital amount, and to take any actions and make any necessary filings with the Registrar of Companies, Authorised Dealer and the Reserve Bank of India, to reflect such changes. The JVC shall deliver copies of such forms, reports and documents to the Parties on the completion of all such filings. The JVC shall ensure that all forms, reports and documents to be filed and / or delivered under this Article are in the prescribed format, are accurately completed and are accompanied by all the required documents. Notwithstanding anything to the contrary contained elsewhere, the Parties agree that there is no obligation on either of the Parties to invest in the JVC beyond each such Party’s Maximum Share Capital and failure on the part of the Parties, or the Board of Directors, to agree on any amendment to the Maximum Share Capital shall not be deemed to be a Deadlock Event.
         
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(c)   Each certificate representing the Shares of the JVC now or hereafter owned by the Shareholders of the JVC or issued to any Person including in connection with a transfer in compliance with this JVA shall be endorsed with the following legend:
 
    “The sale, pledge, hypothecation or transfer of the Shares represented by this certificate is subject to certain restrictions which include without limitation rights of first refusal on the sale of the Shares and tag along rights as set forth in the Articles of Association of the Company and a Joint Venture Agreement.”
 
    The JVC shall not directly or indirectly issue share options or other forms of share capital, warrants, etc. of the JVC to the GM, Executive Officers, employees, Directors, consultants or other Persons except in accordance with the JVC’s approved employees stock option plan approved by the Board followed by an affirmative vote of both the Shareholders.
     5.3 Shareholding Ratio
Unless otherwise provided in Articles 5.7 and 5.8 (or any other provisions of this JVA, as applicable), the ratio of shareholdings in the JVC shall be:
         
AMTEK Member
    50 %
ARI Member
    50 %
     5.4 Pre-emptive Rights
In the event that the Shareholders (pursuant to Article 11.1(g)) approve an increase in the authorized Share Capital of the JVC (beyond the amount of the initial authorized Share Capital set out in Article 5.1) and/or the Board approves a Cash Call pursuant to Article 5.7 in connection with the issuance of additional Shares, each Party shall have the right to subscribe for such additional Shares, subject to the Maximum Share Capital obligation of the Parties. Subject to Articles 5.7 and 5.8, unless otherwise mutually agreed in writing by the Parties, subscriptions and corresponding issuances of such additional Shares will be made so as to ensure that the ratio of shareholdings set out in Article 5.3 is maintained (at 50% AMTEK Member and 50% ARI Member). For greater certainty, except as otherwise provided in this JVA, no Shares shall be issued by the JVC without the prior approval of both the Parties. Notwithstanding anything to the contrary contained in this JVA, the Shareholders shall only be entitled to subscribe to any fresh issue by themselves or through their Affiliates and shall not be entitled to renounce their rights in favour of any Person, except with the prior approval of the other Shareholders.
     5.5 Stand-Alone Financing
Subject to the initial equity financing by the Shareholders as provided for in Article 5.2, the JVC shall, to the greatest extent possible, arrange for its financing requirements on a “stand-alone” or independent basis (through external banks/financing sources and/or funds generated from operations) and shall bear full responsibility for its debts and liabilities. If the JVC is unable to so fund its obligations as aforesaid, the Parties shall provide (unless otherwise mutually agreed in
         
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writing) the required financing or investment by way of additional capital contributions (in accordance with Article 5.7 and/or Article 5.4) subject to the Maximum Share Capital obligation. Each of the Parties may in its sole discretion also provide shareholder loans, guarantees, repayment assurances, other security to lenders or other forms/manner of indirect financing to the JVC (in accordance with Article 8.5), on competitive terms (including rates or return and priority of repayment). The Parties shall, from time to time, endeavour to project the amount of the JVC’s financing requirements based on the Business Plan(s) and Annual Budget(s) approved by the Board, but recognize that these projections are estimates only which will be subject to change based on a variety of factors, including the actual financial results of the JVC, general economic and market conditions, factors specifically affecting the railroad industry, the occurrence of events or circumstances which were not foreseeable or otherwise reflected in the approved Business Plan(s) and Annual Budget(s), etc.
     5.6 Amendments in the Ratio of Shareholding
The Parties agree to amend the ratio of shareholdings as set forth in Annex VI , in accordance with the following Articles 5.7 and 5.8.
     5.7 Additional Capital Contributions
Subject to the Maximum Share Capital obligation of the Parties, the Board of Directors may, from time to time, pass resolutions (each such resolution a “ Cash Call ”) calling for capital contributions to the JVC from the Shareholders (each such contribution a “ Capital Contribution ”) determined by the Board of Directors to be necessary to fund the business needs of the JVC to support its ongoing and/or future requirements in accordance with the Business Plan(s) and Annual Budget(s) approved by the Board of Directors. Each Capital Contribution pursuant to this Article 5.7 shall be made by the Shareholders in the form of a subscription for Shares, subject to the Maximum Share Capital obligation of the Parties. The Shareholders shall make such Capital Contributions on a proportionate basis, in accordance with their then existing ratio (at the time of the applicable Cash Call) of shareholdings in the JVC. Unless otherwise specified by the Board of Directors, each Capital Contribution shall be payable by the Shareholders in cash, on the date specified in the applicable Cash Call, by wire transfer or by way of cheque to the bank account of the JVC as specified in such Cash Call.
Both Parties undertake to cause their Directors to issue and allot the additional Shares as required pursuant to this Article 5.7, and the JVC shall allot and issue the Shares to each Party which has paid its rateable portion of the Capital Contribution pursuant to this Article 5.7, credited as fully paid-up.
     5.8 Non-Paying Shareholder
If any Shareholder (the “ Non-Paying Shareholder ”) does not pay its rateable portion of any Capital Contribution required to be made pursuant to Article 5.7 within fifteen (15) days from the date specified in the applicable Cash Call (or such other extended period as may be required to obtain necessary regulatory approvals, if any), the other Shareholder (the “ Paying Shareholder ”), either itself or through an Affiliate which agrees to be bound by the terms of this JVA (by executing a deed of adherence in the form set out in Annex IV ), if it has paid its
         
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rateable portion of such Capital Contribution, may, after additional notice of fifteen (15) days to the Non-Paying Shareholder, pay such Non-Paying Shareholder’s portion in the form of a subscription for Shares (up to the full amount thereof).
Both Parties undertake to cause their Directors to issue and allot the additional Shares as required pursuant to this Article 5.8, and the JVC shall allot and issue the Shares to the Paying Shareholder (or its Affiliate) which has paid the Capital Contribution, credited as fully paid-up.
Unless otherwise provided in this JVA, in the event of a change in the shareholding ratio as a consequence of the non-payment by either Party of its rateable proportion of any Capital Contribution, the Parties may amend this JVA to revise their respective rights and obligations under this JVA in accordance with the revised shareholding ratio of the Parties and also to comply with the provisions of applicable law, including the Companies Act.
Article 6 Board of Directors
     6.1 Number of Directors and Appointment
The Board of Directors shall consist of six (6) Directors.
For the purposes of this Article 6.1, the shareholding of a Party shall include the Shares, if any, held by Affiliates of that Party.
As long as the shareholding ratio is as set forth in Article 5.3 (at 50% AMTEK Member and 50% ARI Member), AMTEK Member shall nominate three (3) Directors and ARI Member shall nominate three (3) Directors, all to be formally appointed at the Board meeting and confirmed in the Shareholders’ meeting.
Each Party agrees, unconditionally and irrevocably, to vote as a Shareholder of the JVC in favour of appointing the individual(s) nominated by the other Party as Director(s) in accordance with the provisions of this JVA.
If a position on the Board is vacated by the resignation, disability or death of a Director, the Party which originally nominated such Director shall nominate a successor, and both Parties (or, if applicable, the Board of Directors itself in filling such vacancy) shall cause such successor to be appointed as a Director to the Board.
In case the ratio of shareholding between the Parties changes from that as set forth in Article 5.3 (at 50% AMTEK Member and 50% ARI Member), and for one Party is equal to or more than thirty five percent (35%) and less than fifty percent (50%), such Party shall be eligible to have/nominate only two (2) Directors to the Board and shall cause one of its nominee Directors to resign in favour of the nominee Director of the other (majority) Party (which shall have the right to nominate four (4) out of the six (6) Directors on the Board). In case the ratio of shareholding between the Parties changes from that as set forth in Article 5.3 (at 50% AMTEK Member and 50% ARI Member), and for one Party is equal to or more than twenty-six percent (26%) and less than thirty five percent (35%), such Party shall be eligible to have/nominate only one (1) Directors to the Board and shall cause its other nominee Directors to resign in favour of
         
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the nominee Directors of the other (majority) Party (which shall have the right to nominate five (5) out of the six (6) Directors on the Board). However, in case the shareholding of a Party falls below twenty-six percent (26%), such Party shall lose the right to nominate any Directors to the Board and shall cause its nominee Director(s) to resign in favour of the nominee Director(s) of the other Party (which shall have the right to nominate all six (6) Directors to the Board).
     6.2 Board Responsibility
Subject to the provisions of this JVA, the Board of Directors will provide the overall policy framework and governance for the JVC.
In addition to such other duties and responsibilities as are legally required to be performed by the Board of Directors, the Board shall retain the overriding authority to supervise the management of the business and affairs of the JVC, and, subject to the requirements of the Companies Act, may discharge its duties and responsibilities through its meetings or by delegating same to a Committee of Directors (with representation on such Committee by the nominee Directors of the Parties in the same proportion(s) as prescribed in Article 6.1) or to any other Person as may be deemed fit or proper by the Board.
     6.3 Chairman of the Board
The Chairman of the Board will be appointed from among the Directors. As long as the shareholding ratio is as set forth in Article 5.3 (at 50% AMTEK Member and 50% ARI Member), each of AMTEK Member and ARI Member shall have the right for one of its nominee Directors to be appointed as the Chairman of the Board for successive 12 month periods, with the first Chairman to be selected at the first meeting of the Board. Where one Party holds a majority of the Shares that Party shall be entitled to have one of its nominee Directors appointed as the Chairman of the Board. In all cases, the Chairman shall not have a second or casting vote, or any other tie-breaking authority.
     6.4 Alternate Directors and Additional Directors
Any alternate Director to be appointed for a Director (“ Original Director ”) will be nominated by the Party having nominated the Original Director and, on such nomination, the Parties shall cause their respective nominated Directors to vote for and appoint such alternate Director. Such alternate Director shall be entitled, while holding office as such (i) to receive notices of meetings of the Board or any committee(s) of the Board to which the relevant Original Director has been appointed, (ii) to attend and vote as a Director at any such meetings of the Board or any such committee(s) at which the Original Director is not present, and (iii) generally to exercise all the powers, rights, duties and authorities and to perform all of the functions of the Original Director. Further, such alternate Director shall be entitled to exercise the vote of the Original Director.
Subject to the provisions of this JVA, the Board may fill any vacancies in the Board, by nominating and appointing additional directors as per the provisions of Section 260 of the Companies Act.
         
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     6.5 Replacement of Directors
If either AMTEK Member or ARI Member wishes to replace any or all of its nominees on the Board of Directors, the other Party shall join in all necessary acts, steps and proceedings, and shall cause the Shares to which it is beneficially entitled to vote in favour of the removal of such nominee or nominees, and the election in his or their place of an individual or individuals selected by the Party whose nominee or nominees have been so removed. Unless otherwise required by the specific provisions of this JVA, neither AMTEK Member nor ARI Member shall vote or otherwise take steps to cause the removal of a Director nominated by the other Party, unless requested by the other Party to do so.
     6.6 Miscellaneous
Any Party removing or replacing a Director shall be responsible for and shall indemnify the other Party and the JVC from and against any and all loss, claim, liability, damage, expense (including legal fees and expenses), demands, actions, suits or proceedings, civil, criminal, environmental, administrative or investigative (collectively, “ Claims ”) arising from a claim by such Director.
Without prejudice to the provisions of Article 21 below, each Director shall be entitled while he holds that office, to make full disclosure to the Party appointing him, and to any Affiliate of that Party, of any information relating to the JVC which that Director may properly acquire.
The board of directors of any subsidiary of the JVC shall have the same number of directors as the JVC and the Parties shall be entitled to designate for election the same number of directors in each of the subsidiaries as they are entitled to appoint in the JVC. The directors of the subsidiaries of the JVC shall be appointed and removed by the JVC in accordance with the same rules and procedures provided for the Board of Directors of the JVC. Notwithstanding anything to the contrary contained in this JVA, all the rights available to the Parties in this JVA in respect of management, voting, representation in the Board of Directors and committees, etc. shall mutatis mutandis be available to the Parties in the subsidiaries of the JVC.
Article 7 Meetings of the Board of Directors
The meetings of the Board of Directors shall be conducted in accordance with the following provisions of this JVA, except to the extent otherwise specifically required by any mandatory requirements of the Companies Act.
     7.1 Meetings of the Board
The Board shall meet at least once a year (unless required to meet more frequently by applicable law, in which case the Board shall meet the minimum number of times per year required by applicable law), and more frequently as may be desired and in accordance with this JVA.
Meetings of the Board shall take place at locations as may be agreed by the Board any place inside or outside of India. To the extent permitted by applicable law, members of the Board of Directors or any Committee thereof may participate in a meeting of such Board or Committee by
         
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means of a conference telephone, video conference, or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time, and participation by such means shall constitute presence in person at any such meeting.
The Chairman of the Board shall preside over all meetings of the Board. If the Chairman is absent or otherwise unable to preside over any Board meeting, then one of the Directors participating in the meeting shall be elected as the Chairman of that meeting.
All Board meetings will be conducted in the English language and minutes recorded thereof shall also be in English. The English language version of the minutes shall prevail in the event of any conflict or inconsistency with any translation thereof. All documents and data to be prepared and presented at Board meetings, including the annual financial statements, Auditor reports and the like, shall also be in the English language.
Copies of the minutes of each meeting of the Board shall be delivered to each Director within seven (7) Business Days of the meeting. If a Director has not been present at the meeting, copies of all papers considered by the Board at the meeting shall be sent to him together with the minutes within seven (7) Business Days of the meeting.
     7.2 Notices for Board Meetings
All Directors shall be sent written notices of Board meetings by prepaid mail or courier or, confirmed facsimile or email (or any other form of electronic medium), at their respective business addresses from time to time (whether inside or outside of India). In case of notices sent by confirmed facsimile or email (or any other form of electronic medium), a copy shall also be sent by prepaid mail or courier within twenty four (24) hours.
Unless all members of the Board of Directors agree to a shorter notice period:
  (a)   the notice for any Board meeting (including the agenda of the items of business proposed to be transacted at the meeting) shall be given at least seven (7) days in advance of the meeting date; and
 
  (b)   all relevant documents and information for discussion at the meeting shall be provided along with the notice and agenda for the meeting.
     7.3 Agendas for Board Meetings
The agendas for Board meetings shall be established by the Board of Directors.
The notice convening a meeting of the Board of Directors shall set out the agenda for the meeting in sufficient detail to enable the Directors to determine the business intended to be transacted at the meeting, provided that the agenda may be validly supplemented by any Director, by sending to the Chairman and the other Board members at least five (5) days prior to the meeting date, a written list of additional item(s) to be added to the agenda. Notwithstanding the foregoing, a topic not specified in the agenda for the meeting may be discussed at the Board
         
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meeting subject to the written consent of at least one (1) director nominated by each of ARI Member and AMTEK Member.
     7.4 Quorum
The quorum for all the Board meetings shall be one-third of the total number of Directors on the Board, and so long as, in accordance with Article 6.1, each Party retains the right to nominate at least one (1) Director to the Board, shall include at least one (1) Director nominated by each Party (whose presence shall be necessary throughout the entire meeting). If, at any Board meeting, a quorum does not exist at the commencement of the meeting or, if during the meeting, the quorum ceases to exist, the meeting shall (unless otherwise agreed by all Board members) be automatically adjourned for seven (7) days, to reconvene at the same place and same time. If, at the adjourned Board meeting, the requisite quorum is also not present, such Board meeting shall be freshly reconvened in accordance with Article 7.2.
     7.5 Voting
Each Director present or represented at a meeting shall have one vote.
All resolutions of the Board of Directors shall be adopted by an affirmative vote of the majority of the Directors present at the duly constituted meeting at which such resolutions are considered and voted upon, which affirmative vote shall be in accordance with the provisions of Article 8.1.
The Chairman of the meeting shall not have a second or casting vote, or any other tie-breaking authority.
     7.6 Committees of the Board
The Board may, by resolution, constitute Committee(s) of its members and delegate to such Committee(s) such powers and functions (to the extent not prohibited by the Companies Act) as the Board may from time to time decide. The composition of such Committees shall be in proportion to the representation of the Parties on the Board, and the provisions of Articles 7.4, 7.5, 8.1 and 11.1 relating to quorum and voting, respectively, shall also apply to the meetings of such Committees.
     7.7 Written Resolutions
A written resolution circulated to all the Directors and approved by such of the Directors as are required (in accordance with this JVA) to approve such resolution at a meeting of the Board of Directors, shall (subject to compliance with the relevant requirements of the Companies Act) be as valid and effective as a resolution passed at a duly constituted Board meeting, provided that the written resolution has been circulated in draft form, together with the relevant papers, if any, to all the Directors. The resolution shall be presented in writing to all Directors at the following Board of Directors meeting. No circular resolution of the Board shall be valid unless the same has been circulated to the Directors, whether in India or outside India, for a minimum period of seven (7) days.
         
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     7.8 Directors’ Fees
Unless otherwise determined by the Shareholders from time to time, the Directors shall receive no sitting fees for attending or participating at any meetings, nor shall they be entitled to reimbursement of any costs or expenses for attending or participating in such meetings.
Article 8 Business Matters Reserved to the Board of Directors
     8.1 Matters Requiring Resolution by the Board
In addition to those matters which require approval by the Board of Directors in accordance with the provisions of the Companies Act, matters which require resolutions by the Board of Directors shall include the following matters set forth in Article 8.1(a) through Article 8.1(dd). No such matter, including those contemplated by Article 7.5, shall be passed unless there is an affirmative majority vote of the Directors present and voting on such matter at a duly constituted Board meeting or otherwise approved by way of valid written resolution, which affirmative vote or written approval shall include the approval or concurrence of at least one Director nominated by each of ARI Member and AMTEK Member, so long as, in accordance with Article 6.1, each of ARI Member and AMTEK Member retains the right to nominate at least one (1) Director to the Board:
  (a)   calls for Capital Contributions from the Shareholders in accordance with Article 5.7;
 
  (b)   authorizing the borrowing of funds or obtaining credit facilities by the JVC in accordance with Article 8.5;
 
  (c)   business policy and planning, including mid-term and long-term strategic planning for the JVC;
 
  (d)   reviewing, considering and approving the Business Plan(s) and Annual Budget(s) of the JVC, including any material changes, amendments or supplements thereto as may be determined by the Board;
 
  (e)   material human resources policies, including employee benefits plans, profit-sharing plans and/or pension plans;
 
  (f)   Decisions on the organizational structure of the JVC;
 
  (g)   acquisitions (by purchase, lease or otherwise) or disposals (by sale, lease or otherwise) of any real estate or auxiliary rights thereto exceeding Rupees One Million (INR 1,000,000) unless already contained in the approved Business Plan(s) and Annual Budget(s);
 
  (h)   appointment, release and fixing/revision of the remuneration of the GM and the principal financial and/or accounting officer(s) of the JVC;
         
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  (i)   appointment and release from office of any other Executive Officer of the JVC or any other signing officer (including bank signing officers) of the JVC and fixing/revision of the remuneration of such officers; provided that, unless otherwise specifically approved by the Board in exceptional circumstances, two (2) signing officers (including, for banking or other bank account purposes, two (2) bank signing officers) will be required to execute agreements and otherwise bind or create legal obligations for or on behalf of the JVC;
 
  (j)   guidelines for pricing and commercial terms, including approval for the pricing of Products by the JVC prior to the submission thereof in quotations or other communications to customers (provided that this function may be delegated to designated representatives of the Parties);
 
  (k)   decisions regarding the deferral of any payment or the granting of credit to a Party, unless the same requires Shareholder approval under the provisions of the Companies Act (in which case, this matter shall be a decision to be considered and determined by the Shareholders);
 
  (l)   granting any general or special power of attorney authorizing an employee of the JVC or other Person to represent or enter into commitments on behalf of the JVC;
 
  (m)   execution of consulting contracts with third parties (including professional advice in respect of legal or human resource matters), involving a financial commitment on the part of the JVC exceeding Rupees One Million (INR 1,000,000) in any single case;
 
  (n)   execution of any other contract with a term over three (3) years or involving financial commitments on the part of the JVC exceeding Rupees One Million (INR 1,000,000) annually, not included in the approved Business Plan(s) and Annual Budget(s); however, all such contracts with a term over one (1) year shall be presented to the Board of Directors for information;
 
  (o)   execution of any contract or agreement between the JVC and either Party or its Affiliates or any other “related party” transactions, except for contracts, agreements and related party transactions (i) specifically contemplated by this JVA, or (ii) included or contemplated in the approved Business Plans(s) and Annual Budget(s); the members of the Board of Directors shall have access to all relevant information with respect to any such contract, agreement or related party transaction;
 
  (p)   filing, pursuit, abandonment, compromise or settlement of any claim or counterclaim in any litigation, arbitration or administrative proceedings exceeding Rupees Two Million (INR 2,000,000), (but excluding, for greater certainty; matters referred to arbitration under Article 24.1);
 
  (q)   capital expenditures (including asset acquisitions or leasing arrangements), capital asset dispositions or other transactions not included in the approved Business Plan(s) and Annual Budget(s), if such expenditures, dispositions or other
         
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      transactions create an obligation or liability or are intended to generate consideration or proceeds exceeding Rupees Two Million (INR 2,000,000) in any single case and Rupees Five Million (INR 5,000,000) in the aggregate in any financial year;
 
  (r)   consideration and approval of Directors’ service contracts, if any;
 
  (s)   fixing the remuneration of the Auditors;
 
  (t)   grants of loans or guaranteeing the obligations of third parties or taking on any other similar liability (including members of the Board of Directors, Shareholders or officers or employees of the JVC or Affiliates of such Persons);
 
  (u)   dismissing employees of the JVC by incurring or agreeing to bear redundancy or other costs in excess of Rupees One Million (INR 1,000,000) per employee and Rupees Four Million (INR 4,000,000) in the aggregate in any financial year;
 
  (v)   selecting one or more Approved Banks for opening bank accounts of the JVC; an “ Approved Bank ” shall be any bank (i) established under the laws of India or any state thereof and listed in the Second Schedule to the Reserve Bank of India Act, 1934; or (ii) under the laws of any other country as may be mutually agreed by the Parties in writing;
 
  (w)   entering into any arrangement or contract outside the normal course of business; and
 
  (x)   considering and approving any accounting, customer/supplier credit and tax policies of the JVC, including changes in accounting policies or principles applied by the JVC (unless such changes are required by the adoption of new accounting policies or principles, or related recommendations or other interpretive rules

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