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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 17, 1997 (April 8, 1997)
DYERSBURG CORPORATION
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(Exact name of registrant as specified in its charter)
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Tennessee 1-11126 62-1363247
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(State or other jurisdiction of incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
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1315 Phillips Street, Dyersburg, Tennessee 38024
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (901) 285-2323
Not Applicable
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(Former name or former address, if changed since last report)
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Item 1. Changes in Control of Registrant.
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On April 8, 1997, Polysindo Hong Kong Limited, a Hong Kong corporation (the
"Purchaser"), entered into a Stock Purchase Agreement (the "Stock Purchase
Agreement") with each of the 22 persons identified therein (collectively, the
"Sellers") pursuant to which the Purchaser has agreed to purchase an aggregate
of 3,000,000 shares (the "Acquired Shares") of the Common Stock of Dyersburg
Corporation (the "Company") at a per share price of $7.65 in cash, or an
aggregate purchase price of $22,950,000. According to the Purchaser, the
purchase price will be funded through a loan from Sinivasan Marimutu, its
controlling person. These transfers of an aggregate of 22.8% of the issued and
outstanding Common Stock of the Company may be deemed a change in control of the
Company. In addition, the Purchaser has stated its intention to acquire
additional shares of Common Stock or other securities of the Company so that it
would own a majority of the Common Stock of the Company prior to 18 months
following the closing of the transactions contemplated by the Stock Purchase
Agreement (the "Closing Date").
The Closing Date shall take place within three business days after the
fulfillment of all conditions to closing set forth in the Stock Purchase
Agreement. Such conditions include expiration or early termination of the
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and other customary conditions.
Pursuant to the Stock Purchase Agreement, if the Purchaser or an affiliate
thereof initiates a tender offer subject to the provisions of Section 14D and
14E of the Securities Exchange Act of 1934, as amended (the "1934 Act") for more
than 1,000,000 additional shares of Common Stock on or before 12 months
following the Closing Date, and the per share purchase price in the tender offer
is greater than the purchase price for the Acquired Shares, the Purchaser will
pay to the Sellers the difference between the tender offer price and such
purchase price, less interest at an annual rate of 6.5% for the time between the
Closing Date and the closing of the tender offer.
Also on April 8, 1997, the Company, the Purchaser and PT. Texmaco Jaya, an
Indonesian corporation and affiliate of the Purchaser ("Texmaco"), entered into
an Agreement (the "Company Agreement"), pursuant to which the Purchaser, Texmaco
and the Company made certain agreements, including:
(a) If the Purchaser and its affiliates do not own more than 50% of
the Company's outstanding Common Stock within 18 months following the
Closing Date, the Purchaser and its affiliates shall be prohibited from
acquiring additional shares of Common Stock, except pursuant to certain
specified exceptions, such as the Purchaser's exercise of its preemptive
right described below, and the Purchaser's receipt of stock dividends from
the Company.
(b) The Purchaser shall have preemptive rights to acquire additional
shares of Common Stock in the event the Company proposes to issue
additional shares, except in certain specified events, such as (i) stock
dividends, stock splits, recapitalizations or other subdivisions of shares
of Common Stock and (ii) issuances of shares of Common Stock or
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related options to employees, officers and directors of, and consultants
to, the Company pursuant to the Company's current stock incentive plan.
(c) Subject to certain limited exceptions set forth in the Company
Agreement, the Purchaser and its affiliates shall not sell or otherwise
transfer any shares of the Common Stock that they may own without first
offering to sell such shares to the Company.
(d) The Purchaser is entitled to designate three persons who are
senior executive officers of Texmaco to serve on the Company's Board of
Directors. However, if at any time the Purchaser and its affiliates own
less than 20% but at least 15% of the outstanding Common Stock, the
Purchaser shall be entitled to only two designees. If at any time the
Purchaser and its affiliates own less than 15% but at least 10% of the
outstanding Common Stock, the Purchaser shall be entitled to only one
designee. If at any time the Purchaser and its affiliates own less than 10%
of the outstanding Common Stock, the Purchaser shall not be entitled to any
designees.
(e) The Purchaser shall use its best efforts to ensure that the
Company's Board of Directors has at all times four disinterested members,
who shall be persons who are not affiliates of Texmaco and who are not
Texmaco's designees to the Board of Directors.
(f) Any transaction between the Company and the Purchaser or its
affiliates shall be on terms no less favorable than those that would be
obtained from unaffiliated parties in arms' length transactions, and any
such transaction or series of related transactions that exceeds $1,000,000
must be approved by a committee comprised of the Company's disinterested
directors.
(g) The Company shall have the right to request that the Company
effect registration under the Securities Act of 1933, as amended (the "1933
Act"), of the shares owned by the Purchaser and its affiliates, subject to
certain conditions including, without limitation, the Company shall be
obligated to effect no more than three such demand registrations under a
Registration Statement on Form S-3 and no more than two such demand
registrations under a Registration Statement on Form S-1. In the event that
the Company proposes to register shares of its Common Stock under the 1933
Act, Texmaco shall have the right to request that shares of the Common
Stock owned by it be included in such registration, subject to certain
customary restrictions.
Promptly following the closing of the transactions under the Stock Purchase
Agreement, it is anticipated that each of John D. Howard, Julius Koppelman and
Daniel W. Miller will resign from the Company's Board of Directors.
In connection with the transactions described herein, the Board of
Directors of the Company approved the acquisition of the Acquired Shares by the
Purchaser in accordance with the provisions of the Tennessee Business
Combination Act. In addition, the Board of Directors amended the Company's
bylaws to delete the provisions therein providing that certain acquisitions
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of shares of Common Stock are governed by and subject to the provisions of the
Tennessee Control Share Acquisition Act.
Item 7. Financial Statements, Pro Forma Information and Exhibits.
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(c) Exhibits:
3.1 Amended and Restated Bylaws
10.1 Stock Purchase Agreement dated April 8, 1997 between Polysindo
Hong Kong Limited and the sellers named therein.
10.2 Agreement dated April 8, 1997 among Polysindo Hong Kong Limited,
PT. Texmaco Jaya and Dyersburg Corporation.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DYERSBURG CORPORATION
Date: April 17, 1997 By: /s/ William S. Shropshire, Jr.
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William S. Shropshire, Jr.
Chief Financial Officer
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EXHIBIT INDEX
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NO. EXHIBIT
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3.1 Amended and Restated Bylaws
10.1 Stock Purchase Agreement dated April 8, 1997
between Polysindo Hong Kong Limited and the
sellers named therein.
10.2 Agreement dated April 8, 1997 among Polysindo
Hong Kong Limited, PT. Texmaco Jaya and
Dyersburg Corporation.
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Exhibit 3.1
AMENDED AND RESTATED
BYLAWS
OF
DYERSBURG CORPORATION
ARTICLE I.
OFFICES
The Corporation may have such offices, either within or without the
State of Tennessee, as the Board of Directors may designate or as the business
of the Corporation may require from time to time.
ARTICLE II.
SHAREHOLDERS
2.1 Annual Meeting.
An annual meeting of the shareholders of the Corporation shall be held
on such date as may be determined by the Board of Directors. The business to be
transacted at such meeting shall be the election of directors and such other
business as shall be properly brought before the meeting.
2.2 Special Meetings
Special meetings of the shareholders, for any purpose or purposes,
unless otherwise prescribed by law, may be called by the President or the Board
of Directors and shall be called by the President or the Secretary at the
written request of persons holding of record not less than fifteen percent (15%)
of all the votes entitled to be cast on any issue proposed to be considered at
the proposed special meeting, which written request shall state with specificity
the purpose or
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purposes of such meeting, including all statements necessary to make any
statement of such purpose not incomplete, false or misleading, and include any
other information specified in Schedule 14A, Rule 14a-3, Rule 14a-8 or Rule
14a-11 of the Rules and Regulations of the Securities and Exchange Commission.
Business transacted at all special meetings shall be confined to the purpose or
purposes stated in the notice of meeting. In the case of a written request for a
meeting by shareholders, the Corporation shall mail notice of the meeting
pursuant to Section 2.4(a) below within thirty (30) days of the receipt of a
written request complying with this Section 2.2.
2.3 Place of Meetings.
The Board of Directors may designate any place, either within or
without the State of Tennessee, as the place of meeting for any annual meeting
or for any special meeting. If no place is fixed by the Board of Directors, the
meeting shall be held at the principal office of the Corporation.
2.4 Notice of Meetings; Waiver.
(a) Notice. Notice of the date, time and place of each annual
and special shareholders' meeting and, in the case of a special meeting, a
description of the purpose or purposes for which the meeting is called, shall be
given no fewer than ten (10) days nor more than two (2) months before the date
of the meeting. Such notice shall comply with the requirements of Article XI of
these Bylaws.
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(b) Waiver. A shareholder may waive any notice required by law, the
Charter or these Bylaws before or after the date and time stated in such notice.
The waiver must be in writing, be signed by the shareholder entitled to the
notice and be delivered to the Corporation for inclusion in the minutes or
filing with the corporate records. A shareholder's attendance at a meeting: (1)
waives objection to lack of notice or defective notice of the meeting, unless
the shareholder at the beginning of the meeting (or promptly upon his arrival)
objects to holding the meeting or transacting business at the meeting; and (2)
waives objection to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
2.5 Record Date.
The Board of Directors shall fix as the record date for the
determination of shareholders entitled to notice of a shareholders' meeting, to
demand a special meeting, to vote or to take any other action, a date not more
than seventy (70) days before the meeting or action requiring a determination of
shareholders. A record date fixed for a shareholders' meeting is effective for
any adjournment of such meeting unless the Board of Directors fixes a new record
date, which it must do if the meeting is adjourned to a date more than four (4)
months after the date fixed for the original meeting.
2.6 Shareholders' List.
After the record date for a meeting has been fixed, the Corporation
shall prepare an alphabetical list of the names of all shareholders who are
entitled to notice of a shareholders'
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meeting. Such list will be arranged by voting group (and within each voting
group by class or series of shares), and will show the address of and number of
shares held by each shareholder. The shareholders' list will be available for
inspection by any shareholder, beginning two (2) business days after notice of
the meeting is given for which the list was prepared and continuing through the
meeting, at the Corporation's principal office or at a place identified in the
meeting notice in the city where the meeting will be held. A shareholder, his
agent or attorney is entitled on written demand to inspect and, subject to the
requirements of the Tennessee Business Corporation Act (the "Act"), to copy the
list, during regular business hours and at his expense, during the period it is
available for inspection.
2.7 Voting Groups; Quorum; Adjournment.
All shares entitled to vote and be counted together collectively on a
matter at a meeting of shareholders shall be a "voting group." Shares entitled
to vote as a separate voting group may take action on a matter at a meeting only
if a quorum of those shares exists with respect to that matter. Except as
otherwise required by the Act or provided in the Charter, a majority of the
votes entitled to be cast on a matter by a voting group constitutes a quorum of
that voting group for action on that matter.
Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
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If a quorum of a voting group shall not be present or represented at
any meeting, the shares entitled to vote thereat shall have power to adjourn the
meeting to a different date, time or place without notice other than
announcement at the meeting of the new time, date or place to which the meeting
is adjourned. At any adjourned meeting at which a quorum of any voting group
shall be present or represented, any business may be transacted by such voting
group which might have been transacted at the meeting as originally called.
2.8 Voting of Shares.
Unless otherwise provided by the Act or the Charter, each outstanding
share is entitled to one (1) vote on each matter voted on at a shareholders'
meeting. Only shares are entitled to vote.
If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless the
Charter or the Act requires a greater number of affirmative votes. Unless
otherwise provided in the Charter, directors are elected by a plurality of the
votes cast by the shares entitled to vote in the election at a meeting at which
a quorum is present.
2.9 Proxies.
A shareholder may vote his shares in person or by proxy. A shareholder
may appoint a proxy to vote or otherwise act for him by signing an appointment
either personally or by his attorney-in-fact. An appointment of a proxy is
effective when received by the Secretary or other officer or agent authorized to
tabulate votes. An appointment is valid for eleven (11) months unless another
period is expressly provided in the appointment form. An appointment of a proxy
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is revocable by the shareholder unless the appointment form conspicuously states
that it is irrevocable and the appointment is coupled with an interest.
2.10 Acceptance of Shareholder Documents.
If the name signed on a shareholder document (a vote, consent, waiver,
or proxy appointment) corresponds to the name of a shareholder, the Corporation,
if acting in good faith, is entitled to accept such shareholder document and
give it effect as the act of the shareholder. If the name signed on such
shareholder document does not correspond to the name of a shareholder, the
Corporation, if acting in good faith, is nevertheless entitled to accept such
shareholder document and to give it effect as the act of the shareholder if:
(i) the shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity;
(ii) the name signed purports to be that of a fiduciary
representing the shareholder and, if the Corporation requests, evidence
of fiduciary status acceptable to the Corporation has been presented
with respect to such share-holder document;
(iii) the name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder, and, if the Corporation
requests, evidence of this status acceptable to the Corporation has
been presented with respect to the shareholder document;
(iv) the name signed purports to be that of a pledgee,
beneficial owner or attorney-in-fact of the shareholder, and, if the
Corporation requests, evidence acceptable to the
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Corporation of the signatory's authority to sign for the shareholder
has been presented with respect to such shareholder document; or
(v) two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one
(1) of the co-owners and the person signing appears to be acting on
behalf of all the co-owners.
The Corporation is entitled to reject a shareholder document if the Secretary or
other officer or agent authorized to tabulate votes, acting in good faith, has a
reasonable basis for doubt about the validity of the signature on such
shareholder document or about the signatory's authority to sign for the
shareholder.
2.11 Action Without Meeting.
Action required or permitted by the Act to be taken at a shareholders'
meeting may be taken without a meeting. If all shareholders entitled to vote on
the action consent to taking such action without a meeting, the affirmative vote
of the number of shares that would be necessary to authorize or take such action
at a meeting is the act of the shareholders.
The action must be evidenced by one (1) or more written consents
describing the action taken, signed by each shareholder entitled to vote on the
action in one (1) or more counterparts, indicating such signing shareholder's
vote or abstention on the action and delivered to the Corporation for inclusion
in the minutes or for filing with the corporate records.
If the Act or the Charter requires that notice of a proposed action be
given to nonvoting shareholders and the action is to be taken by consent of the
voting shareholders, then the
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Corporation will give its nonvoting shareholders written notice of the proposed
action at least ten (10) days before such action is taken. Such notice will
contain or be accompanied by the same material that would have been required to
be sent to nonvoting shareholders in a notice of a meeting at which the proposed
action would have been submitted to the shareholders for action.
2.12 Presiding Officer and Secretary.
Meetings of the shareholders shall be presided over by the Chairman, or
if he is not present or if the Corporation shall not have a Chairman, by the
President, or if neither the Chairman nor the President is present, by a
chairman to be chosen by a majority of the shareholders entitled to vote at such
meeting. The Secretary or, in his absence, an Assistant Secretary shall act as
secretary of every meeting, but if neither the Secretary nor an Assistant
Secretary is present, the shareholders entitled to vote at such meeting shall
choose any person present to act as secretary of the meeting.
2.13 Notice of Nominations. Nominations for the election of directors
may be made by the Board of Directors or a committee appointed by the Board of
Directors authorized to make such nominations or by any shareholder entitled to
vote in the election of directors generally. However, any such shareholder
nomination may be made only if written notice of such nomination has been given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the Corporation not later than (a) with respect to an election to
be held at an annual meeting of shareholders, one hundred twenty (120) days in
advance of such meeting, and (b) with respect to an election to be held at a
special meeting of shareholders for the election of directors,
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the close of business on the tenth day following the date on which notice of
such meeting is first given to shareholders. In the case of any nomination by
the Board of Directors or a committee appointed by the Board of Directors
authorized to make such nominations, compliance with the proxy rules of the
Securities and Exchange Commission shall constitute compliance with the notice
provisions of the preceding sentence.
In the case of any nomination by a shareholder, each such notice shall
set forth: (a) as to each person whom the shareholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address and
residence address of such person, (ii) the principal occupation or employment of
such person, (iii) the class and number of shares of the Corporation which are
beneficially owned by such person, and (iv) any other information relating to
such person that is required to be disclosed in solicitations of proxies with
respect to nominees for election as directors, pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (including without limitation
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director, if elected); and (b) as to the shareholder giving
the notice (i) the name and address, as they appear on the Corporation's books,
of such shareholder, (ii) the class and number of shares of the Corporation
which are beneficially owned by such shareholder, (iii) a representation that
the shareholder is a record or beneficial holder of at least one percent (1%) or
$1,000 in market value of stock of the Corporation entitled to vote at such
meeting; has held such stock for at least one year and shall continue to own
such stock through the date of such meeting; and intends to appear in person or
by proxy at the meeting to
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present the nomination; and (c) a description of all arrangements or
understandings between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the shareholder. The Chairman of the meeting may
refuse to acknowledge the nomination of any person not made in compliance with
the foregoing procedure.
2.14 Notice of New Business. At an annual meeting of the shareholders
only such new business shall be conducted, and only such proposals shall be
acted upon, as shall have been properly brought before the meeting. To be
properly brought before the annual meeting such new business must be (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (b) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (c) otherwise
properly brought before the meeting by a shareholder. For a proposal to be
properly brought before an annual meeting by a shareholder, the shareholder must
have given timely notice thereof in writing to the Secretary of the Corporation
and the proposal and the shareholder must comply with SEC Rule 14a-8 under the
Securities Exchange Act of 1934. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation, within the time limits specified by SEC Rule 14a-8.
A shareholder's notice to the Secretary shall set forth as to each
matter the shareholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual
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meeting, (b) the name and address, as they appear on the Corporation's books, of
the shareholder proposing such business, (c) the class and number of shares of
the Corporation which are beneficially owned by the shareholder, (d) a
representation that the shareholder is a record or beneficial holder of at least
one percent (1%) or $1,000 in market value of stock of the Corporation entitled
to vote at such meeting; has held such stock for at least one year and shall
continue to own such stock through the date of such meeting; and intends to
appear in person or by proxy at the meeting to present the proposal specified in
the notice, and (e) any financial interest of the shareholder in such proposal.
Notwithstanding anything in these Bylaws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 2.14. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that new business or any
shareholder proposal was not properly brought before the meeting in accordance
with the provisions of this Section 2.14, and if he should so determine, he
shall so declare to the meeting and any such business or proposal not properly
brought before the meeting shall not be acted upon at the meeting. This
provision shall not prevent the consideration and approval or disapproval at the
annual meeting of reports of officers, directors and committees, but in
connection with such reports no new business shall be acted upon at such annual
meeting unless stated and filed as herein provided.
2.15 Conduct of Meetings. Meetings of the shareholders generally
shall follow accepted rules of parliamentary procedure subject to the following:
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(a) The Chairman of the meeting shall have absolute authority
over the matters of procedure, and there shall be no appeal from the ruling of
the Chairman. If, in his absolute discretion, the Chairman deems it advisable to
dispense with the rules of parliamentary procedure as to any meeting of
shareholders or part thereof, he shall so state and shall state the rules under
which the meeting or appropriate part thereof shall be conducted.
(b) If disorder should arise which prevents the continuation
of the legitimate business of the meeting, the Chairman may quit the chair and
announce the adjournment of the meeting; and upon so doing, the meeting is
immediately adjourned.
(c) The Chairman may ask or require that anyone not a bona
fide shareholder or proxy leave the meeting.
(d) The resolution or motion shall be considered for vote only
if proposed by a shareholder or a duly authorized proxy and seconded by a
shareholder or duly authorized proxy other than the individual who proposed the
resolution or motion.
(e) Except as the Chairman may permit, no matter shall be
presented to the meeting which has not been submitted for inclusion in the
agenda at least thirty (30) days prior to the meeting.
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ARTICLE III.
DIRECTORS
3.1 Powers and Duties.
All corporate powers shall be exercised by or under the authority of
and the business and affairs of the Corporation managed under the direction of
the Board of Directors.
3.2 Number.
The Board of Directors shall consist of no fewer than three (3) nor
more than twelve (12) members. The exact number of directors, within the minimum
and maximum, or the range for the size of the Board, or whether the size of the
Board shall be fixed or variable-range may be fixed, changed or determined from
time to time by the Board of Directors.
3.3 Meetings; Notice.
The Board of Directors may hold regular and special meetings
either within or without the State of Tennessee. The Board of Directors may
permit any or all directors to participate in a regular or special meeting by,
or conduct the meeting through the use of, any means of communication by which
all directors participating may simultaneously hear each other during the
meeting. A director participating in a meeting by this means is deemed to be
present in person at the meeting.
(a) Regular Meetings. Unless the Charter otherwise provides,
regular meetings of the Board of Directors may be held without notice of the
date, time, place or purpose of the meeting.
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(b) Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman, the President or any two (2) directors.
Unless the Charter otherwise provides, special meetings must be preceded by at
least twenty-four (24) hours' notice of the date, time and place of the meeting
but need not describe the purpose of such meeting. Such notice shall comply with
the requirements of Article XI of these Bylaws.
(c) Adjourned Meetings. Notice of an adjourned meeting need
not be given if the time and place to which the meeting is adjourned are fixed
at the meeting at which the adjournment is taken, and if the period of
adjournment does not exceed one (1) month in any one (1) adjournment.
(d) Waiver of Notice. A director may waive any required notice
before or after the date and time stated in the notice. Except as provided in
the next sentence, the waiver must be in writing, signed by the director and
filed with the minutes or corporate records. A director's attendance at or
participation in a meeting waives any required notice to him of such meeting
unless the director at the beginning of the meeting (or promptly upon his
arrival) objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
3.4 Quorum.
Unless the Charter requires a greater number, a quorum of the Board of
Directors consists of a majority of the fixed number of directors if the
Corporation has a fixed board size or a
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majority of the number of directors prescribed, or if no number is prescribed,
the number in office immediately before the meeting begins, if the Corporation
has a variable range sized board.
3.5 Voting.
If a quorum is present when a vote is taken, the affirmative vote of a
majority of directors present is the act of the Board of Directors, unless the
Charter or these Bylaws require the vote of a greater number of directors. A
director who is present at a meeting of the Board of Directors when corporate
action is taken is deemed to have assented to such action unless:
(i) he objects at the beginning of the meeting (or promptly
upon his arrival) to holding the meeting or transacting business at the
meeting;
(ii) his dissent or abstention from the action taken is
entered in the minutes of the meeting; or
(iii) he delivers written notice of his dissent or abstention
to the presiding officer of the meeting before its adjournment or to
the Corporation immediately after adjournment of the meeting. The
right of dissent or abstention is not available to a director who votes
in favor of the action taken.
3.6 Action Without Meeting.
Unless the Charter otherwise provides, any action required or permitted
by the Act to be taken at a Board of Directors' meeting may be taken without a
meeting. If all directors consent to taking such action without a meeting, the
affirmative vote of the number of directors that would be necessary to authorize
or take such action at a meeting is the act of the Board of Directors.
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Such action must be evidenced by one or more written consents describing the
action taken, signed by each director in one (1) or more counterparts,
indicating each signing director's vote or abstention on the action which
consents shall be included in the minutes or filed with the corporate records
reflecting the action taken. Action taken by consent is effective when the last
director signs the consent, unless the consent specifies a different effective
date.
3.7 Compensation.
Directors, and members of any committee created by the Board of
Directors, shall be entitled to such compensation for their services as
directors and members of such committee as shall be fixed from time to time by
the Board, and shall also be entitled to reimbursement for any reasonable
expenses incurred in attending meetings of the Board or of any such committee
meetings. Any director receiving such compensation shall not be barred from
serving the Corporation in any other capacity and receiving reasonable
compensation for such other services.
3.8 Resignation.
A director may resign at any time by delivering written notice to the
Board of Directors, the Chairman or President, or to the Corporation. A
resignation is effective when the notice is delivered unless the notice
specifies a later effective date.
3.9 Vacancies.
Any vacancy on the Board of Directors that results from an increase in
the number of directors shall be filled only by a majority of the Board of
Directors then in office, and any other vacancy occurring in the Board of
Directors shall be filled only by an affirmative vote of a
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majority of the Board of Directors then in office, even though the directors
remaining in office may constitute fewer than a quorum of the Board of
Directors, or by a sole remaining director.
ARTICLE IV.
COMMITTEES
4.1 Committees.
Unless the Charter otherwise provides, the Board of Directors may
create one (1) or more committees, each consisting of one (1) or more members.
All members of committees of the Board of Directors that exercise powers of the
Board must be members of the Board and serve at the pleasure of the Board.
The creation of a committee and appointment of a member or members to
it must be approved by the greater of (i) a majority of all directors in office
when the action is taken or (ii) the number of directors required by the Charter
or these Bylaws to take action.
To the extent specified by the Board of Directors or in the Charter,
each committee may exercise the authority of the Board of Directors. A committee
may not, however:
(i) authorize distributions, except according to a formula or
method prescribed by the Board of Directors;
(ii) approve or propose to shareholders action that the Act
requires to be approved by shareholders;
(iii) fill vacancies on the Board or on any committee thereof;
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(iv) amend the Charter without shareholder action;
(v) adopt, amend or repeal Bylaws;
(vi) approve a plan of merger not requiring shareholder
approval;
(vii) authorize or approve reacquisitions of shares, except
according to a formula or method prescribed by the Board of Directors;
or
(viii) authorize or approve the issuance or sale or contract
for sale of shares, or determine the designation and relative rights,
preferences and limitations of a class or series of shares, except that
the Board of Directors may authorize such committee to do so within
limits specifically prescribed by the Board.
All such committees and their members shall be governed by the
same statutory requirements regarding meetings, action without meetings, notice
and waiver of notice, quorum and voting requirements as are applicable to the
Board of Directors and its members.
ARTICLE V.
OFFICERS
5.1 Number.
The officers of the Corporation shall be a Chairman, a President, one
or more Vice Presidents, a Secretary, a Treasurer and such other officers as may
be from time to time appointed by the Board of Directors or by the President
with the approval of the Board. One person may
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<PAGE> 19
simultaneously hold more than one office except the President may not
simultaneously hold the office of Secretary.
5.2 Appointment.
The principal officers shall be appointed annually by the Board at the
first meeting of the Board following the annual meeting of the shareholders, or
as soon thereafter as is conveniently possible. Each officer shall serve at the
pleasure of the Board and until his successor shall have been appointed, or
until his death, resignation or removal.
5.3 Resignation and Removal.
An officer may resign at any time by delivering notice to the
Corporation. Such resignation is effective when such notice is delivered unless
such notice specifies a later effective date. An officer's resignation does not
affect the Corporation's contract rights, if any, with the officer.
The Board of Directors may remove any officer at any time with or
without cause, but such removal shall not prejudice the contract rights, if any,
of the person so removed.
5.4 Vacancies.
Any vacancy in an office from any cause may be filled for the unexpired
portion of the term by the Board of Directors.
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<PAGE> 20
5.5 Duties.
(a) Chairman. The Chairman shall preside at all meetings of
the shareholders and the Board of Directors, and shall see that all orders and
resolutions of the Board of Directors are carried into effect.
(b) President. The President shall be the Chief Executive
Officer of the Corporation and shall have general supervision over the active
management of the business of the Corporation. He shall have the general powers
and duties of supervision and management usually vested in the office of the
President of a corporation and shall perform such other duties as the Board of
Directors may from time to time prescribe.
(c) Chief Financial Officer. The Chief Financial Officer
shall, subject to the power of the President, have general and active control of
all of the financial matters of the Corporation and shall have all necessary
powers to discharge such responsibility and shall perform such other duties as
the Board of Directors, the President, or the Chairman may prescribe.
(d) Vice President. The Vice President or Vice Presidents (if
any) shall be active executive officers of the Corporation, shall assist the
President in the active management of the business, and shall perform such other
duties as the Board of Directors may from time to time prescribe.
(e) Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the shareholders and shall prepare and
record all votes and all minutes of all such meetings in a book to be kept for
that purpose; he shall perform like duties for any committee
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<PAGE> 21
when required. The Secretary shall give, or cause to be given, notice of all
meetings of the shareholders and of the Board of Directors when required, and
unless directed otherwise by the Board of Directors, shall keep a stock record
containing the names of all persons who are shareholders of the Corporation,
showing their place of residence and the number of shares held by them
respectively. The Secretary shall have the responsibility of authenticating
records of the Corporation. The Secretary shall perform such other duties as may
be prescribed from time to time by the Board of Directors.
(f) Treasurer. The Treasurer shall have the custody of the
Corporation's funds and securities, shall keep or cause to be kept full and
accurate account of receipts and disbursements in books belonging to the
Corporation, and shall deposit or cause to be deposited all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
disburse or cause to be disbursed the funds of the Corporation as required in
the ordinary course of business or as may be ordered by the Board, taking proper
vouchers for such disbursements, and shall render to the President and directors
at the regular meetings of the Board, or whenever they may require it, an
account of all of his transactions as Treasurer and the financial condition of
the Corporation. He shall perform such other duties as may be incident to his
office or as prescribed from time to time by the Board of Directors. The
Treasurer shall give the Corporation a bond, if required by the Board of
Directors, in a sum and with one or more sureties satisfactory to the Board for
the faithful performance of the duties of his office and for the restoration to
the Corporation in case of his
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<PAGE> 22
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
(g) Other Officers. Other officers appointed by the Board of
Directors shall exercise such powers and perform such duties as may be delegated
to them.
(h) Delegation of Duties. In case of the absence or disability
of any officer of the Corporation or of any person authorized to act in his
place, the Board of Directors may from time to time delegate the powers and
duties of such officer to any officer, or any director, or any other person whom
it may select, during such period of absence or disability.
5.6 Indemnification and Insurance.
(a) Indemnification. The Corporation shall indemnify and
advance expenses to each past, present and future director and officer of the
Corporation, or any person who may have served at its request as a director or
officer of another corporation (and, in either case, his heirs, executors and
administrators), to the full extent allowed by the laws of the State of
Tennessee, both as now in effect and as hereafter adopted. The Corporation may
indemnify and advance expenses to any employee or agent of the Corporation who
is not a director or officer (and his heirs, executors and administrators) to
the same extent as to a director or officer, if the Board of Directors
determines that to do so is in the best interests of the Corporation.
(b) Non-Exclusivity of Rights. The indemnification and
advancement of expenses provisions of subsection (a) of this Section 5.6 shall
not be exclusive of any other right which any
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<PAGE> 23
person may have or hereafter acquire under any statute, provision of the
Charter, provision of these Bylaws, resolution adopted by the shareholders, or
resolution adopted by the Board of Directors providing for such indemnification
or advancement of expenses.
(c) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any individual who is or was a director, officer,
employee or agent of the Corporation, or who, while a director, officer,
employee or agent of the Corporation, is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Act.
ARTICLE VI.
SHARES OF STOCK
6.1 Shares with or without Certificates.
The Board of Directors may authorize that some or all of the shares of
any or all of the Corporation's classes or series of stock be evidenced by a
certificate or certificates of stock. The Board of Directors may also authorize
the issue of some or all of the shares of any or all of the Corporation's
classes or series of stock without certificates. The rights and obligations of
shareholders with the same class and/or series of stock shall be identical
whether or not their shares are represented by certificates.
23
<PAGE> 24
(a) Shares with Certificates. If the Board of Directors
chooses to issue shares of stock evidenced by a certificate or certificates,
each individual certificate shall include the following on its face: (i) the
Corporation's name, (ii) the fact that the Corporation is organized under the
laws of the State of Tennessee, (iii) the name of the person to whom the
certificate is issued, (iv) the number of shares represented thereby, (v) the
class of shares and the designation of the series, if any, which the certificate
represents, and (vi) such other information as applicable law may require or as
may be lawful.
If the Corporation is authorized to issue different classes of shares
or different series within a class, the designations, relative rights,
preferences and limitations applicable to each class and the variations and
rights, preferences and limitations determined for each series (and the
authority of the Board of Directors to determine variations for future series)
shall be summarized on the front or back of each certificate. Alternatively,
each certificate may state on its front or back that the Corporation will
furnish the shareholder this information upon written request and without
charge.
Each certificate of stock issued by the Corporation shall be signed
(either manually or in facsimile) by the Chairman, the President or a Vice
President, and by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer. If the person who signed a certificate no longer holds
office when the certificate is issued, the certificate is nonetheless valid.
(b) Shares without Certificates. If the Board of Directors
chooses to issue shares of stock without certificates, the Corporation, if
required by the Act, shall, within a
24
<PAGE> 25
reasonable time after the issue or transfer of shares without certificates, send
the shareholder a written statement of the information required on certificates
by Section 6.1(a) of these Bylaws and any other information required by the Act.
6.2 Subscriptions for Shares.
Subscriptions for shares of the Corporation shall be valid only if they
are in writing. Unless the subscription agreement provides otherwise,
subscriptions for shares, regardless of the time when they are made, shall be
paid in full at such time, or in such installments and at such periods, as shall
be determined by the Board of Directors. All calls for payment on subscriptions
shall be uniform as to all shares of the same class or of the same series,
unless the subscription agreement specifies otherwise.
6.3 Transfers.
Transfers of shares of the capital stock of the Corporation shall be
made only on the books of the Corporation by (i) the holder of record thereof,
(ii) by his legal representative, who, upon request of the Corporation, shall
furnish proper evidence of authority to transfer, or (iii) his attorney,
authorized by a power of attorney duly executed and filed with the Secretary of
the Corporation or a duly appointed transfer agent. Such transfers shall be made
only upon surrender, if applicable, of the certificate or certificates for such
shares properly endorsed and with all taxes thereon paid.
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<PAGE> 26
6.4 Lost, Destroyed, or Stolen Certificates.
No certificate for shares of stock of the Corporation shall be issued
in place of any certificate alleged to have been lost, destroyed or stolen
except on production of evidence, satisfactory to the Board of Directors or
Transfer Agent for the Corporation's stock, of such loss, destruction or theft,
and, if the Board of Directors or Transfer Agent for the Corporation's stock so
requires, upon the furnishing of an indemnity bond in such amount and with such
terms and such surety as either the Board of Directors or Transfer Agent for the
Corporation's stock may in its discretion require.
ARTICLE VII.
CORPORATE ACTIONS
7.1 Contracts.
Unless otherwise required by the Board of Directors, the President or
any Vice President shall execute contracts or other instruments on behalf of and
in the name of the Corporation. The Board of Directors may from time to time
authorize any other officer, assistant officer or agent to enter into any
contract or execute any instrument in the name of and on behalf of the
Corporation as it may deem appropriate, and such authority may be general or
confined to specific instances.
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<PAGE> 27
7.2 Loans.
No loans shall be contracted on behalf of the Corporation and no
evidence of indebtedness shall be issued in its name unless authorized by the
President or the Board of Directors. Such authority may be general or confined
to specific instances.
7.3 Checks, Drafts, Etc.
Unless otherwise required by the Board of Directors, all checks,
drafts, bills of exchange and other negotiable instruments of the Corporation
shall be signed by either the Chairman, the President, a Vice President or such
other officer, assistant officer or agent of the Corporation as may be
authorized so to do by the Board of Directors, the chief financial officer or
the President. Such authority may be general or confined to specific business,
and, if so directed by the Board of Directors, the chief financial officer or
the President, the signatures of two or more such officers may be required.
7.4 Deposits.
All funds of the Company not otherwise employed shall be deposited from
time to time to the credit of the Corporation in such banks or other
depositories as the Board of Directors may authorize.
7.5 Voting Securities Held by the Corporation.
Unless otherwise required by the Board of Directors, the President or
such other officer designated by the President or the Board of Directors shall
have full power and authority on behalf of the Corporation to attend any meeting
of security holders, or to take action on written consent
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<PAGE> 28
as a security holder, of other corporations in which the Corporation may hold
securities. In connection therewith the President or such other officer
designated by the President or the Board of Directors shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities which the Corporation possesses. The Board of Directors may, from
time to time, confer like powers upon any other person or persons.
7.6 Dividends.
The Board of Directors may, from time to time, declare, and the
Corporation may pay, dividends on its outstanding shares of capital stock in the
manner and upon the terms and conditions provided by applicable law. The record
date for the determination of shareholders entitled to receive the payment of
any dividend shall be determined by the Board of Directors, but which in any
event shall not be less than ten (10) days prior to the date of such payment.
ARTICLE VIII.
FISCAL YEAR
The fiscal year of the Corporation shall be determined by the Board of
Directors, and in the absence of such determination, shall end on the Saturday
closest in time to September 30 of each year.
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ARTICLE IX.
CORPORATE SEAL
The Corporation may, but shall not be required to, have a corporate
seal.
ARTICLE X.
AMENDMENT OF BYLAWS
These Bylaws may be altered, amended or repealed, and new Bylaws may be
adopted at any meeting of the shareholders by the affirmative vote of a majority
of the stock represented at such meeting, or by the affirmative vote of a
majority of the members of the Board of Directors who are present at any regular
or special meeting.
ARTICLE XI.
NOTICE
Unless otherwise provided for in these Bylaws, any notice required
shall be in writing except that oral notice is effective if it is reasonable
under the circumstances and not prohibited by the Charter or these Bylaws.
Notice may be communicated in person; by telephone, telegraph, teletype or other
form of wire or wireless communication; or by mail or private carrier. If these
forms of personal notice are impracticable, notice may be communicated by a
newspaper of general circulation in the area where published; or by radio,
television or other form of public broadcast communication. Written notice to a
domestic or foreign corporation authorized to
29
<PAGE> 30
transact business in Tennessee may be addressed to its registered agent at its
registered office or to the corporation or its secretary at its principal office
as shown in its most recent annual report or, in the case of a foreign
corporation that has not yet delivered an annual report, in its application for
a certificate of authority.
Written notice to shareholders, if in a comprehensible form, is
effective when mailed, if mailed postpaid and correctly addressed to the
shareholder's address shown in the Corporation's current record of shareholders.
Except as provided above, written notice, if in a comprehensible form, is
effective at the earliest of the following: (a) when received, (b) five (5) days
after its deposit in the United States mail, if mailed correctly addressed and
with first class postage affixed thereon; (c) on the date shown on the return
receipt, if sent by registered or certified mail, return receipt requested, and
the receipt is signed by or on behalf of the addressee; or (d) twenty (20) days
after its deposit in the United States mail, as evidenced by the postmark if
mailed correctly addressed, and with other than first class, registered or
certified postage affixed. Oral notice is effective when communicated if
communicated in a comprehensible manner.
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<PAGE> 1
Exhibit 10.1
-----------------------------------------------------------------
STOCK PURCHASE AGREEMENT
AMONG
POLYSINDO HONG KONG LIMITED
AND
SELLERS
----------------------
DATED: APRIL 8, 1997
----------------------
-----------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 1 DEFINITIONS............................................1
1.1 Definitions............................................1
ARTICLE 2 PURCHASE AND SALE OF THE SHARES........................2
2.1 Purchase and Sale of Shares............................2
2.2 Closing................................................2
2.3 Additional Purchase Price..............................3
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDER.............................4
3.1 Power and Authority....................................4
3.2 Authorization; No Contravention........................4
3.3 Title to Purchase Shares...............................4
3.4 Governmental Authorization; Third Party Consents.......4
3.5 Binding Effect.........................................5
3.6 Litigation.............................................5
3.7 Compliance with Laws...................................5
3.8 No Default or Breach...................................5
3.9 Private Offering.......................................5
3.10 Broker's, Finder's or Similar Fees.....................5
3.11 Knowledge of Selling Stockholders......................5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE
PURCHASER..............................................6
4.1 Existence and Power....................................6
4.2 Authorization; No Contravention........................6
4.3 Governmental Authorization; Third Party Consents.......6
4.4 Binding Effect.........................................6
4.5 Litigation.............................................6
4.6 Experience; Accredited Investor........................7
4.7 Broker's, Finder's or Similar Fees.....................7
</TABLE>
-i-
<PAGE> 3
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 5 CONDITIONS TO THE OBLIGATION
OF THE PURCHASER TO CLOSE..............................8
5.1 Representations and Warranties.........................8
5.2 Compliance with this Agreement.........................8
5.3 Approval of Counsel to the Purchaser...................8
5.4 Waiver of Rights of First Offer........................8
5.5 Purchased Shares.......................................9
5.6 Company Agreement......................................9
ARTICLE 6 CONDITIONS TO THE OBLIGATION
OF THE SELLING STOCKHOLDER TO CLOSE....................9
6.1 Representations and Warranties.........................9
6.2 Compliance with this Agreement.........................9
6.3 Approval of Counsel to such Selling Stockholder........9
6.4 Waiver of Rights of First Offer........................9
6.5 Payment of Purchase Price..............................9
ARTICLE 7 MISCELLANEOUS.........................................10
7.1 Survival of Representations and Warranties............10
7.2 Notices...............................................10
7.3 Inquiries.............................................10
7.4 Successors and Assigns; Third Party Beneficiaries.....10
7.5 Amendment and Waiver..................................11
7.6 Counterparts..........................................11
7.7 Headings..............................................11
7.8 Governing Law.........................................11
7.9 Severability..........................................11
7.10 Rules of Construction.................................11
7.11 Entire Agreement......................................11
7.12 Publicity.............................................12
7.13 Further Assurances....................................12
</TABLE>
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<PAGE> 4
STOCK PURCHASE AGREEMENT
AGREEMENT, dated April 8, 1997 (this "Agreement"), among Polysindo Hong
Kong Limited (the "Purchaser"), and the persons executing this Agreement (the
"Selling Stockholders");
WHEREAS, on the date hereof, such Selling Stockholders are the holders of
shares, par value $.01 per share, of Common Stock (the "Common Stock") of
Dyersburg Corporation (the "Company") in the amounts listed on Annex A to this
Agreement; and
WHEREAS, upon the terms and conditions set forth in this Agreement, such
Selling Stockholders agree to sell to Purchaser, and Purchaser agrees to
purchase, a number of shares of such Common Stock in the aggregate amount listed
on Annex A to this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. As used in this Agreement, unless the context requires a
different meaning, the following terms have the meanings indicated:
"Adjustment Rate" means 6.5% per annum simple interest.
"Agreement" means this Agreement as the same may be amended, supplemented
or modified in accordance with the terms hereof.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in the State of Tennessee or the State of New York are
authorized or required by law or executive order to close.
"Closing" has the meaning set forth in Section 2.2.
"Closing Date" means the date specified in Section 2.2.
"Common Stock" means Common Stock, par value $.01 per share, of the
Company, or any other capital stock of the Company into which such stock is
reclassified or reconstituted.
"Company" has the meaning assigned to such term in the recitals to this
Agreement.
<PAGE> 5
"Contractual Obligations" means as to any Person, any provision of any
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"Governmental Authority" means the government of any nation, state, city,
locality or other political subdivisions thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"HSR Act" means Title II of the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever.
"Purchase Price" means with respect to a share of Common Stock $7.65, with
respect to the payment to any Selling Stockholder the amount set out in Annex A,
and with respect to all Shares an aggregate amount of $22,950,000, in each case
as adjusted pursuant to the provisions of Section 2.1.
"Person" means any individual, firm, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Requirements of Law" means, as to any Person, any law, statute, treaty,
rule, regulation, right, privilege, qualification, license or franchise or
determination of an arbitrator or a court or other Governmental Authority, in
each case applicable or binding upon such Person or any of its property or to
which such Person or any of its property is subject or pertaining to any or all
of the transactions contemplated or referred to herein.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder.
"Shares" means with respect to any Selling Stockholder the number of shares
of Common Stock listed on Annex A and with respect to all Selling Stockholders
three (3) million shares of Common Stock.
ARTICLE 2
PURCHASE AND SALE OF THE SHARES
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<PAGE> 6
2.1 Purchase and Sale of Shares. Subject to the terms and conditions herein
set forth, each such Selling Stockholder agrees to sell to the Purchaser, and
the Purchaser agrees that it will purchase from each such Selling Stockholder,
on the Closing Date, the number of shares of Common Stock indicated by such
Selling Stockholder's name on Annex A, for a price of $7.65 per Share. The
Purchase Price payable to each Selling Stockholder is listed on Annex A. In the
event the transaction closes after April 30, 1997, the price per share shall be
increased by an amount computed like interest, accruing from and after May 1,
1997 to the actual closing date and using the Adjustment Rate. For example, if
the closing occurs on May 30, 1997, the price per share will be $7.69, computed
by multiplying the price per share by the Adjustment Rate, multiplying that
product by a fraction with 30 as the numerator and 365 as the denominator, and
adding the original price per share to the result of the previous computation.
2.2 Closing. The purchase and sale of the Shares (the "Closing") shall take
place at the offices of Alston & Bird, Atlanta, Georgia, at 10 a.m., local time,
within three (3) business days after the fulfillment of all conditions of
closing, but no later than June 1, 1997, or at such other place, time and date
as each such Selling Stockholder and the Purchaser may agree in writing (the
"Closing Date"). On the Closing Date, each such Selling Stockholder shall
deliver to the Purchaser stock certificates, duly endorsed for transfer and
accompanied by all requisite transfer taxes, if any, representing the Shares
being purchased by the Purchaser from such Selling Stockholder, against delivery
of the Purchase Price for such Shares by wire transfer of immediately available
funds representing payment in full by the Purchaser for the Shares. Each such
Selling Stockholder shall give instructions for the wire transfer.
2.3 Additional Purchase Price. Purchaser shall promptly pay to each Selling
Shareholder an additional purchase price under the following facts and
conditions:
(a) Purchaser or an affiliate thereof (i) initiates a public tender offer
subject to the provisions of Sections 14D and 14E of the Securities
Exchange Act of 1934, as amended and the rules and regulations promulgated
thereunder ("Tender Offer") for more than 1,000,000 additional shares of
Common Stock or (ii) acquires the Company in a merger or comparable
transaction, in either instance prior to the anniversary date one year from
the closing date of this Agreement, and, with respect to the Tender Offer,
pays to the stockholders of Company for the shares of Common Stock acquired
in the Tender Offer a purchase price per share in excess of the adjusted
price per share of Common Stock paid hereunder or, with respect to such
acquisition, distributes consideration with respect to each share of Common
Stock that is in excess of the adjusted price per share of Common Stock
paid hereunder.
(b) In the event the outstanding shares of Common Stock are increased or
decreased or changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of recapitalization,
reclassification, stock split up, combination of shares, stock dividend or
transaction having similar effect, (i) the total number of shares of Common
Stock referred to in paragraph (a), (ii) the price per share of Common
Stock
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<PAGE> 7
paid hereunder and (iii) the number of shares of Common Stock purchased
hereunder shall be proportionately, reasonably and appropriately adjusted
by the Purchaser for the purpose of this Section 2.3. As a result of the
adjustments, the adjusted number of shares times the adjusted price per
share must equal the actual aggregate purchase price paid hereunder for the
Shares of the Common Stock.
(c) In the event the Company is engaged in any merger, sale of stock,
consolidation, or liquidation with a Person other than Purchaser, whereby
its Common Stock is after any such event no longer publicly traded, this
Section 2.3 shall lapse and be of no further force and effect.
(d) The additional purchase price per share of Common Stock will be equal
to (i) the Tender Offer purchase price per share or the acquisition
consideration per share, as the case may be, less (ii) the sum of the (A)
price per share of Common Stock paid hereunder, as adjusted pursuant to
paragraph (b), plus (B) interest thereon at the Adjustment Rate for the
period between the closing of this Agreement and the closing of the Tender
Offer. The additional purchase price for each Selling Stockholder shall be
the additional purchase price per share times the adjusted number of shares
of Common Stock sold by each such Selling Stockholder. The aggregate
additional purchase price shall be the additional purchase price per share
times the adjusted number of shares of Common Stock of all Selling
Stockholders and such aggregate additional purchase price shall be
allocated among the Selling Stockholders as provided above.
(e) Such additional purchase price for each Selling Stockholder will be
paid to each Selling Stockholder as promptly as possible after the closing
of the tender offer and will bear interest from the closing of the tender
offer until paid at the Adjustment Rate.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDER
Each of such Selling Stockholders hereby represents and warrants to the
Purchaser as follows:
3.1 Power and Authority. Such Selling Stockholder has the legal capacity to
execute, deliver and perform his obligations under this Agreement.
3.2 Authorization; No Contravention. The execution, delivery and
performance by such Selling Stockholder of this Agreement and the transactions
contemplated hereby, including, without limitation, the sale of the Shares, (a)
do not violate, conflict with or result in any breach or contravention of or the
creation of any Lien under, any Contractual Obligation of such Selling
Stockholder, or any Requirement of Law applicable to such Selling Stockholder
and (b) do not
-4-
<PAGE> 8
violate any judgment, injunction, writ, award, decree or order of any nature
(collectively, "Orders") of any Governmental Authority against, or binding upon,
such Selling Stockholder. Such Selling Stockholder has not previously entered
into any agreement that is currently in effect or to which such Selling
Stockholder is currently bound, granting any rights to any Person that are
inconsistent with the rights to be granted by such Selling Stockholder in this
Agreement.
3.3 Title to Purchase Shares. Such Selling Stockholder owns beneficially
and of record the Shares and has good, valid and marketable title to the Shares,
free and clear of all Liens. Such Selling Stockholder has the unrestricted power
and authority to transfer the Shares to the Purchaser. Upon delivery by such
Selling Stockholder to the Purchaser of the stock certificates representing the
Shares and payment therefor, the Purchaser shall acquire good, valid and
marketable title to the Shares, free and clear of all Liens.
3.4 Governmental Authorization; Third Party Consents. No approval, consent,
compliance, exemption, authorization, or other action by, or notice to, or
filing with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law,
is necessary or required in connection with the execution, delivery or
performance (including, without limitation, the sale and delivery of the
Shares), by, or enforcement against, such Selling Stockholder of this Agreement
or the transactions contemplated hereby except in connection with or compliance
with the provisions of the HSR Act.
3.5 Binding Effect. This Agreement has been duly executed and delivered by
such Selling Stockholder and constitutes the legal, valid and binding obligation
of such Selling Stockholder, enforceable against such Selling Stockholder in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or transfer,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
3.6 Litigation. There are no legal actions, suits, proceedings, claims,
complaints, disputes or investigations pending or, to the knowledge of such
Selling Stockholder, threatened, at law, in equity, in arbitration or before any
Governmental Authority against such Selling Stockholder that would, if adversely
determined, have a material adverse effect on the validity or enforceability of
this Agreement or the ability of such Selling Stockholder to perform his
obligations under this Agreement. No Order has been issued by any court or other
Governmental Authority against such Selling Stockholder purporting to enjoin or
restrain the execution, delivery or performance of this Agreement.
3.7 Compliance with Laws. Such Selling Stockholder is in compliance with
all Requirements of Law in all respects, except to the extent that the failure
to comply with such Requirements of Law would not have a material adverse effect
on the ability of such Selling Stockholder to perform his obligations under this
Agreement.
-5-
<PAGE> 9
3.8 No Default or Breach. Such Selling Stockholder has not received notice
of and is not in default under or with respect to any Contractual Obligation of
such Selling Stockholder in any respect, which, individually or together with
all such defaults, could have a material adverse effect on the ability of such
Selling Stockholder to perform his obligations under this Agreement.
3.9 Private Offering. No form of general solicitation or general
advertising was used by such Selling Stockholder or his representatives in
connection with the offer or sale of the Shares. No registration of the Shares,
pursuant to the provisions of the Securities Act or any state securities or
"blue sky" laws, will be required by the sale of the Shares.
3.10 Broker's, Finder's or Similar Fees. There are no brokerage
commissions, finder's fees or similar fees or commissions payable by such
Selling Stockholder in connection with the transactions contemplated hereby
based on any agreement, arrangement or understanding with such Selling
Stockholder or any action taken by such Selling Stockholder.
3.11 Knowledge of Selling Stockholders. Such Selling Stockholder has no
knowledge of any material information about the Company that has not been made
public by the Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Selling Stockholders as
follows:
4.1 Existence and Power. Such Purchaser (a) is a corporation duly formed,
validly existing and in good standing under the laws of its domiciliary
jurisdiction; (b) has all requisite power and authority to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently, or is currently proposed to be, engaged; and
(c) has the power and authority to execute, deliver and perform its obligations
under this Agreement.
4.2 Authorization; No Contravention. The execution, delivery and
performance by such Purchaser of this Agreement and the transactions
contemplated hereby, including, without limitation, the purchase of the Shares,
(a) have been duly authorized by all necessary official action of such
Purchaser; (b) do not contravene the terms of the governing instruments of such
Purchaser, or any amendment thereof; (c) do not violate, conflict with or result
in any breach or contravention of or the creation of any Lien under, any
Contractual Obligation of such Purchaser, or any Requirement of Law applicable
to such Purchaser; and (d) do not violate any Orders of any Governmental
Authority against, or binding upon, such Purchaser.
-6-
<PAGE> 10
4.3 Governmental Authorization; Third Party Consents. No approval, consent,
compliance, exemption, authorization or other action by, or notice of, or filing
with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law,
is necessary or required in connection with the execution, delivery or
performance (including, without limitation, the purchase of the Shares) by, or
enforcement against, such Purchaser of this Agreement or the transactions
contemplated hereby, except in connection with or compliance with the HSR Act.
4.4 Binding Effect. This Agreement has been duly executed and delivered by
such Purchaser, and constitutes the legal, valid and binding obligations of such
Purchaser enforceable against such Purchaser in accordance with their terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.5 Litigation. There are no legal actions, suits, proceedings, claims,
complaints, disputes or investigations pending or, to the knowledge of such
Purchaser, threatened, at law, in equity, in arbitration or before any
Governmental Authority against such Purchaser that would, if adversely
determined, have a material adverse effect on the ability of such Purchaser to
perform its obligations under this Agreement. No Order has been issued by any
court or other Governmental Authority against such Purchaser purporting to
enjoin or restrain the execution, delivery or performance of this Agreement.
4.6 Purchaser Representations. The Shares to be acquired by such Purchaser
pursuant to this Agreement are being or will be acquired for its own account and
with no intention of distributing or reselling such purchased Shares or any part
thereof in any transaction that would be in violation of the securities laws of
the United States of America, or any state, without prejudice, however, to the
rights of such Purchaser at all times to sell or otherwise dispose of all or any
part of the Shares under an effective registration statement under the
Securities Act, or under an exemption from such registration available under the
Securities Act. If such Purchaser should in the future decide to dispose of any
of the Shares, such Purchaser understands and agrees that it may do so only in
compliance with the Securities Act and applicable state securities laws, as then
in effect. The Purchaser agrees to the imprinting, so long as required by law,
of a legend on certificates representing all of the Shares:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND
MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS
OR AN APPLICABLE EXEMPTION TO THE REGISTRATION REQUIREMENTS OF SUCH ACT OR
SUCH LAWS.
-7-
<PAGE> 11
4.7 Broker's, Finder's or Similar Fees. There are no brokerage commissions,
finder's fees or similar fees or commissions payable by such Purchaser in
connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with such Purchaser or any action taken by any such
Person.
ARTICLE 5
CONDITIONS TO THE OBLIGATION
OF THE PURCHASER TO CLOSE
The obligation of the Purchaser to purchase the Shares, to pay the purchase
price therefor at the Closing and to perform any obligations hereunder shall be
subject to the satisfaction as determined by, or waiver by, the Purchaser of the
following conditions by all Stockholders on or before the Closing Date:
5.1 Representations and Warranties. The representations and warranties of
such Selling Stockholder contained in Article 3 hereof shall be true and correct
in all material respects at and on the Closing Date.
5.2 Compliance with this Agreement. Each Selling Stockholder shall have
performed and complied in all material respects with all of his agreements and
conditions set forth or contemplated herein that are required to be performed or
complied with by such Selling Stockholder on or before the Closing Date.
5.3 Approval of Counsel to the Purchaser. All actions and proceedings
hereunder and all documents required to be delivered by such Selling Stockholder
hereunder or in connection with the consummation of the transactions
contemplated hereby, and all other related matters, shall have been acceptable
to counsel to the Purchaser, in its reasonable judgment as to their form and
substance.
5.4 Expiration of HSR Waiting Period. The applicable waiting period under
the HSR Act shall have expired or been terminated.
5.5 Purchased Shares. Each Selling Stockholder shall have delivered to the
Purchaser one or more certificates in definitive form representing the aggregate
number of Shares purchased by such Purchaser from such Selling Stockholder, duly
executed for transfer or accompanied by duly executed stock powers, with
guaranteed signatures so that the transfer will be accepted by the transfer
agent.
5.6 Company Agreement. Purchaser shall have entered into an agreement with
the Company, pursuant to which the Company represents that neither the Tennessee
Control Share
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<PAGE> 12
Statute nor the Tennessee Business Combination Statute is applicable to
Purchaser, and providing for the election of certain directors and certain other
matters.
5.7 Material Adverse Change. There shall have been no material adverse
change in the business, operations or financial condition of the Company since
January 4, 1997.
5.8 Other Agreements. Purchaser shall acquire at Closing aggregate Shares
hereunder equal to no less than three (3) million shares of the Company's Common
Stock
ARTICLE 6
CONDITIONS TO THE OBLIGATION
OF THE SELLING STOCKHOLDER TO CLOSE
The obligation of each such Selling Stockholder to sell the Shares and the
obligation of such Selling Stockholder to perform his other obligations
hereunder, shall be subject to the satisfaction as determined by, or waiver by,
such Selling Stockholder of the following conditions on or before the Closing
Date:
6.1 Representations and Warranties. The representations and warranties of
the Purchaser contained in Article 4 hereof shall be true and correct in all
material respects at and on the Closing Date.
6.2 Compliance with this Agreement. The Purchaser shall have performed and
complied in all material respects with all of its agreements and conditions set
forth or contemplated herein that are required to be performed or complied with
by such Purchaser on or before the Closing Date.
6.3 Approval of Counsel to such Selling Stockholder. All actions and
proceedings hereunder and all documents required to be delivered by the
Purchaser hereunder or in connection with the consummation of the transactions
contemplated hereby, and all other related matters, shall have been acceptable
to counsel to such Selling Stockholder, in their reasonable judgment as to their
form and substance.
6.4 Expiration of HSR Waiting Period. The applicable waiting period under
the HSR Act shall have expired or been terminated.
6.5 Payment of Purchase Price. Each such Selling Stockholder shall have
received its portion of the Purchase Price for its portion of the Shares.
ARTICLE 7
MISCELLANEOUS
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<PAGE> 13
7.1 Survival of Representations and Warranties. All of the representations
and warranties made herein shall survive until the Closing Date.
7.2 Notices. All notices, demands and other communications provided for or
permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
(a) if to Selling Stockholders at the addresses listed on Annex A.:
(b) if to the Purchaser:
Polysindo Hong Kong Limited
c/o P.T. Texmaco
Sentra Mulia Suite 1008, 10th Floor
Jl. H.R. Rasuna Said Kav. X-6 No. 8
Jakarta 12940, Indonesia
Attention: P. Manohar
With a copy to:
Alston & Bird
1201 West Peachtree Street
Atlanta Georgia 30309-3424
Attention Harvey Hill, Jr.
All such notices and communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if telecopied.
7.3 Inquiries. Each of the Selling Stockholders and the Purchaser shall
promptly advise the other of all oral, and promptly provide each other with
copies of all written, communications, requests, inquiries or other
notifications received from any Governmental Authorities with respect to the
transactions contemplated hereby.
7.4 Successors and Assigns; Third Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto. Nothing herein shall give or be construed to give to any
Person, other than the parties hereto, any legal or equitable rights hereunder.
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<PAGE> 14
7.5 Amendment and Waiver.
(a) No failure or delay on the part of the Purchaser or any such Selling
Stockholder in exercising any right, power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Purchaser or any such Selling Stockholder at law, in equity or otherwise.
(b) Any amendments, supplement or modification of or to any provision of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure by the Purchaser or any such Selling Stockholder from the terms
of any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by the Purchaser and any such Selling Stockholder
and (ii) only in the specific instance and for the specific purpose for which
made or given.
7.6 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
7.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
7.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
7.9 Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
7.10 Rules of Construction. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
7.11 Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or
-11-
<PAGE> 15
referred to herein or therein. This Agreement supersedes all prior agreements
and understandings among the parties with respect to such subject matter.
7.12 Publicity. Each Selling Stockholder agrees not to make any public
announcements regarding this transaction without the prior consent of Purchaser.
7.13 Further Assurances. Each of the parties shall execute such documents
and perform such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving any notices
to, or making any filings with, any Governmental Authority or any other Person)
as may be reasonably required or desirable to carry out or to perform the
provisions of this Agreement.
[Signatures Begin on Next Page]
-12-
<PAGE> 16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
PURCHASER
POLYSINDO HONG KONG LIMITED
BY: /s/ Sinivasan Marimutu
NAME: Sinivasan Marimutu
TITLE: President/Director
CERTIFICATE OF AUTHENTICITY.
I, P. Manohar, do hereby certify that I am Vice
President (Finance) of Polysindo Eka Perkasa and that I do
hereby further certify that the foregoing signature is by
the person so indicated and that person has the power to
execute this agreement on behalf of POLYSINDO HONG
KONG LIMITED.
/s/ P. Manohar
-----------------------------------
P. MANOHAR
DATED: April 8, 1997
SELLING STOCKHOLDERS SIGNATURES BEGIN ON THE FOLLOWING PAGE
-13-
<PAGE> 17
SELLING STOCKHOLDERS
/s/ Kurt T. Borowsky
-------------------------------------------
KURT T. BOROWSKY
/s/ Hugh J. Byrnes
-------------------------------------------
HUGH J. BYRNES
HUGH J. BYRNES, CUST, HUGH J. BYRNES IV
UNDER THE NJ UNIFORM TRANSFERS TO MINORS ACT
BY: /s/ Hugh J. Byrnes
----------------------------------------
HUGH J. BYRNES, CUST, PAIGE JEAN BYRNES
UNDER THE NJ UNIFORM TRANSFERS TO MINORS ACT
BY: /s/ Hugh J. Byrnes
----------------------------------------
JACQUELYN J. BYRNES, CUST, HUGH J. BYRNES
IV UNDER THE NJ UNIFORM TRANSFERS TO MINORS ACT
BY: /s/ Jacquelyn J. Byrnes
------------------------------------------
JACQUELYN J. BYRNES, CUST, PAIGE JEAN
BYRNES UNDER THE NJ UNIFORM TRANSFERS
TO MINORS ACT
BY; /S/ Jacquelyn J. Byrnes
------------------------------------------
-14-
<PAGE> 18
/s/ Franca M. Ferracane
---------------------------------------------
FRANCA M. FERRACANE
/s/ Keith A. Hightower
----------------------------------------------
KEITH A. HIGHTOWER
/s/ Julius Koppelman
----------------------------------------------
JULIUS KOPPELMAN
/s/ Richard S. Linhart
----------------------------------------------
RICHARD S. LINHART
THE MCJ FOUNDATION
BY: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, TRUSTEE
/s/ Frank H. Pearl
----------------------------------------------
FRANK H. PEARL
THE PICK FOUNDATION, INC.
BY: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, DIRECTOR
-15-
<PAGE> 19
HARDING SERVICE CORPORATION, ET AL.
PROFIT SHARING PLAN & TRUST
By: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, TRUSTEE
BY: /s/ Frank E. Richardson
------------------------------------------
FRANK E. RICHARDSON, TRUSTEE
/s/ Frank E. Richardson
----------------------------------------------
FRANK E. RICHARDSON
THE RICHARDSON FOUNDATION
BY: /s/ Frank E. Richardson
-----------------------------------------
FRANK E. RICHARDSON, TRUSTEE
THE SANDY HILL FOUNDATION
BY: /s/ Jeffrey R. Walsh
------------------------------------------
JEFFREY R. WALSH
/s/ Manfred L. Steyn
----------------------------------------------
MANFRED L. STEYN
/s/ Frederic J. Truslow
----------------------------------------------
FREDERIC J. TRUSLOW
/s/ Aura Gracia De Truslow
----------------------------------------------
AURA GARCIA DE TRUSLOW
-16-
<PAGE> 20
THE VAN BEUREN MANAGEMENT TRUST
BY: /s/ Kurt T. Borowsky
------------------------------------------
KURT T. BOROWSKY, TRUSTEE
/s/ Henrik N. Vanderlip
----------------------------------------------
HENRIK N. VANDERLIP
-17-
<PAGE> 21
ANNEX A
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
PURCHASE PRICE
PAYABLE TO EACH
NUMBER OF SELLING
SELLING STOCKHOLDER ADDRESS SHARES STOCKHOLDER
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Kurt T. Borowsky Harding Service LLC 125,620 $ 960,993
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Hugh J. Byrnes Harding Service LLC 241,196 $1,845,149
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Hugh J. Byrnes, Cust, Hugh J. Byrnes IV Harding Service LLC 1,300 $ 9,945
Under the NJ Uniform Transfers to Minors Act 330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Hugh J. Byrnes, Cust, Paige Jean Byrnes Harding Service LLC 1,300 $ 9,945
Under the NJ Uniform Transfers to Minors Act 330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Jacquelyn J. Byrnes, Cust, Hugh J. Byrnes Harding Service LLC 1,300 $ 9,945
IV Under the NJ Uniform Transfers to Minors 330 South Street; P.O. Box 1975
Act Morristown, NJ 07962-1975
Jacquelyn J. Byrnes, Cust, Paige Jean Harding Service LLC 1,300 $ 9,945
Byrnes Under the NJ Uniform Transfers to 330 South Street; P.O. Box 1975
Minors Act Morristown, NJ 07962-1975
Franca M. Ferracane Harding Service LLC 15,000 $ 114,750
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Keith A. Hightower Harding Service LLC 110,038 $ 841,791
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Julius Koppelman Harding Service LLC 73,100 $ 559,215
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Richard S. Linhart OPUS Capital Corp. 74,120 $ 567,018
1776 Broadway, 18th Floor
New York, New York 10019
The MCJ Foundation Van Beuren Management 779,478 $5,963,006
330 South Street, P. O. Box 1975
Morristown, NJ 07962-1975
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 22
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
PURCHASE PRICE
PAYABLE TO EACH
SELLING STOCKHOLDER NUMBER OF SELLING
(continued from previous page) ADDRESS SHARES STOCKHOLDER
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Frank H. Pearl Perseus LLC 12,185 $ 93,215
1627 "I" Street, N.W., Suite 610
Washington, D.C. 20006
The PICK Foundation, Inc. Harding Service LLC 71,357 $ 545,881
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Harding Service Corporation, et al. Harding Service LLC 37,448 $ 286,477
Profit Sharing Plan & Trust 330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Frank E. Richardson F.E. Richardson & Co. 446,945 $3,419,129
245 Park Avenue, 41st Floor
New York, New York 10167
The Richardson Foundation F.E. Richardson & Co. 6,163 $ 47,147
245 Park Avenue, 41st Floor
New York, New York 10167
The Sandy Hill Foundation Harding Service LLC 515,300 $3,942,045
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Manfred L. Steyn Harding Service LLC 157,611 $1,205,724
330 South Street; P.O. Box 1975
Morristown, NJ 07962-1975
Frederic J. Truslow Perseus LLC 5,401 $ 41,318
1627 "I" Street, N.W., Suite 610
Washington, D.C. 20006
Aura Garcia de Truslow Perseus LLC 16,750 $ 128,138
1627 "I" Street, N.W., Suite 610
Washington, D.C. 20006
The Van Beuren Management Trust Van Beuren Management 279,670 $2,139,476
330 South Street, P. O. Box 1975
Morristown, NJ 07962-1975
Henrik N. Vanderlip Viking Capital Partners 27,418 $ 209,748
133 River Road
Cos Cob, CT 06807
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
-2-
<PAGE> 1
Exhibit 10.2
AGREEMENT, dated as of April 8, 1997, between POLYSINDO HONG KONG LIMITED,
a Hong Kong corporation ("Texmaco"), and DYERSBURG CORPORATION, a Tennessee
corporation (the "Company").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Texmaco has entered into one or more Securities Purchase Agreements
dated the date hereof in connection with the purchase of 3,000,000 shares of the
common stock, $0.01 par value, of the Company from shareholders of the Company
party thereto (collectively, the "Purchase Agreement");
WHEREAS, it is a condition to Texmaco's obligation to consummate the
transactions contemplated by the Purchase Agreement, that this Agreement be
executed by the parties hereto;
WHEREAS, Texmaco is under common control with PT. Texmaco Jaya, an
Indonesian corporation ("Texmaco Jaya");
WHEREAS, it is the intention of the Company, Texmaco and Texmaco Jaya to
pursue strategic business relationships that will benefit each of their
respective shareholders;
WHEREAS, Texmaco Jaya hereby joins in this Agreement for the purpose of
being bound by its terms with the same effect as if it were named as Texmaco
herein; and
WHEREAS, the terms and conditions of this Agreement shall become effective
as to the parties hereto on such date (the "Effective Date") as the transactions
contemplated by the Purchase Agreement shall have been consummated.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Company and Texmaco hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms have
the meanings specified below:
"Acquired Shares" means any Shares held by Texmaco as of the date of this
Agreement or subsequently acquired by Texmaco or its Affiliates in compliance
with this Agreement.
"Affiliate" means any Person that directly or indirectly through one or
more intermediaries controls or is controlled by, or is under common control
with Texmaco; provided, that for purposes of this Agreement, the Company shall
not be deemed to be an Affiliate of Texmaco.
"Commission" means the United States Securities and Exchange Commission and
any successor federal agency having similar powers.
"Common Stock" means the common stock, $0.01 par value, of the Company.
<PAGE> 2
"Disinterested Members of the Board of Directors" means such members of the
Board of Directors of the Company that are not Affiliates of Texmaco or Texmaco
Jaya or designees of Texmaco pursuant to Section 5(a) or 5(b) hereof.
"Holder" means Texmaco and any of its Affiliates that beneficially own
Acquired Shares.
"Outstanding Common Stock" means, as of a given date, the number of shares
of outstanding Common Stock on such date on a fully diluted basis.
"Person" means an individual, a corporation, a partnership, an association,
a joint stock company, a trust, any unincorporated organization, or a government
or political subdivision thereof.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act of 1933, as amended (the "1933 Act"), and the
automatic effectiveness or the declaration or ordering of effectiveness of such
registration statement or document.
"Registrable Securities" means the Acquired Shares and any Common Stock of
the Company issued as (or issuable upon the conversion or exercise of any
warrant, option, right, or other security which is issued as) a dividend or
other distribution with respect to, or in exchange for, or in replacement of,
the Acquired Shares; provided, however, that Registrable Securities shall not
include any shares of Common Stock which have been previously registered in
accordance with Section 4, or which have been sold to the public either pursuant
to a registration statement or Rule 144 promulgated under the 1933 Act, or which
have been sold in a private transaction in which the transferor's rights under
Section 4 have not been assigned.
"Registration Expenses" means all expenses incurred in effecting any
registration pursuant to this Agreement, including, without limitation, all
registration, qualification, and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses,
and expenses of any regular or special audits incident to or required by any
such registration, but shall not include Selling Expenses, fees and
disbursements of counsel for the Holders and the compensation of regular
employees of the Company, which shall be paid in any event by the Company.
"Selling Expenses" means all underwriting discounts, selling commissions
and stock transfer taxes applicable to the sale of Registrable Securities and
fees and disbursements of counsel for any Holder.
"Shares" means shares of Common Stock.
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"Transfer" of any Shares means to sell, assign, convey, pledge,
hypothecate, mortgage, gift or otherwise transfer or dispose of such Shares and
a "Transfer" (used as a noun) shall mean the act of Transferring.
2. Right of First Offer. (a) So long as this Agreement remains in effect,
neither Texmaco nor any of its Affiliates that holds Acquired Shares (Texmaco or
any such Affiliate being referred to herein as the "Transferor") will Transfer
all or any portion of the Acquired Shares without the prior written consent of
the Disinterested Members of the Board of Directors of the Company, to any
Person except pursuant to the provisions of Section 2(b) or 2(c) below.
(b) (i) Prior to any sale or offer of sale of any Acquired Shares,
the Transferor will give at least thirty (30) days' advance
written notice (the "Offer Notice") of such event to the
Company. The Offer Notice shall specify the number of
Acquired Shares which the Transferor desires to sell (the
"Offered Shares") and the purchase price in cash which such
Transferor proposes to receive for such Offered Shares.
During the thirty (30) day period following the Company's
receipt of the Offer Notice (the "Notice Period"), the
Company may give written notice to the Transferor (an
"Acceptance Notice") agreeing to purchase (or agreeing to
cause a Person designated by the Company to purchase) all
(but not less than all) of the Offered Shares for the
purchase price set forth in the Offer Notice or,
alternatively, the Company may give written notice (the
"Counter Offer Notice") offering to purchase (or to cause a
Person designated by the Company to purchase) all (but not
less than all) of the Offered Shares at a purchase price and
on such terms specified in the Counter Offer Notice. In the
event the Company delivers a Counter Offer Notice to the
Transferor during the Notice Period, both parties shall
negotiate diligently and in good faith during the Notice
Period to agree upon terms upon which the Transferor will
sell the Offered Shares to the Company, but nothing herein
shall obligate the parties to reach such an agreement.
(ii) In the event during the Notice Period the Company either
delivers an Acceptance Notice to the Transferor or the
Transferor and the Company (or its designee) agree to the
terms upon which the Company (or its designee) shall
purchase the Offered Shares, the Company (or its designee)
shall purchase, and the Transferor shall sell to the Company
(or its designee), the Offered Shares on the terms set forth
in the Acceptance Notice or on the terms negotiated, as the
case may be, at a closing to take place at a place and time
to be agreed to by the Transferor and the Company (or its
designee),
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but in no event shall such closing occur more than
seventy-five (75) days following termination of the Notice
Period.
(iii) If the Transferor does not receive an Acceptance Notice
during the Notice Period or if the Transferor and the
Company (or its designee) are unable to negotiate mutually
acceptable terms for the purchase by the Company (or its
designee) of the Offered Shares during the Notice Period,
the Transferor may, at any time within one hundred and
eighty (180) days following termination of the Notice
Period, sell all (but not less than all) of the Offered
Shares to a third party other than an Affiliate of the
Transferor for a purchase price in cash at least ten percent
(10%) greater than the highest purchase price offered by the
Company (or its designee) during the Notice Period. No
transfer of Offered Shares shall be made after the end of
said one hundred and eighty (180) day period without again
complying with the provisions of this Section 2.
(c) The following Transfers may be made by a Transferor without
compliance with Section 2(a) or 2(b):
(i) any Transfer by the Transferor to an Affiliate provided the
transferee agrees to be bound by the provisions of this
Agreement as if such transferee were originally named as
Texmaco herein by executing and delivering to the Company
the agreement set forth in Exhibit A hereto;
(ii) a Transfer pursuant to a bona fide pledge of or the granting
of a security interest or other lien or encumbrance in such
Acquired Shares to a lender to secure a bona fide loan,
guarantee or other financial support, and a Transfer
resulting from the foreclosure of such pledge or security
interest or other lien or encumbrance that may be placed
involuntarily upon any Acquired Shares, provided that, in
the instance of a foreclosure, the transferee or pledgee
agrees to be bound by the provisions of this Agreement as if
such transferee or pledgee were originally named as Texmaco
herein by executing and delivering to the Company the
Agreement set forth in Exhibit A hereto;
(iii) a Transfer pursuant to a tender offer, merger,
consolidation or similar transaction approved by the
Disinterested Members of the Board of Directors of the
Company; and
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(iv) a Transfer pursuant to a firm commitment underwritten public
sale of the Acquired Shares registered with the Commission
in accordance with the provisions of Section 4 hereof.
3. Restrictions on Other Transactions. In the event Texmaco and its
Affiliates shall not own more than fifty percent (50%) of the Outstanding Common
Stock on the date that is eighteen months following the Effective Date, neither
Texmaco nor any of its Affiliates will so long as this Agreement remains in
effect, directly or indirectly, without the prior written consent of the
Disinterested Members of the Board of Directors of the Company:
(a) acquire, or offer or propose to acquire, beneficial ownership of
any Shares or other securities of the Company (or direct or indirect rights
or options to acquire any securities of the Company), except by way of
stock dividends or other distributions made in respect of Acquired Shares;
(b) acquire or agree to acquire, by purchase or otherwise, control of
any Person which, prior to the time of such acquisition is publicly
disclosed (by filing with the Commission or otherwise), or is otherwise
known by Texmaco, to be the beneficial owner of more than 5% of the
Outstanding Common Stock; provided, however, that Texmaco may acquire such
control if it causes the Person to dispose of such Person's Common Stock as
soon as practicable after the acquisition of control by Texmaco;
(c) except for the purpose of assuring the election of the three
Texmaco designees to the Board of Directors to the extent contemplated by
Section 5 hereof, solicit proxies, seek to induce any other Person to
solicit proxies, or become a "participant" in a "solicitation" of proxies,
as those terms are defined in Item 4 of Schedule 14A and Rule 14a-1 under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), in
respect of any shares of capital stock of the Company or call any
shareholders meeting or initiate or propose, or otherwise solicit
shareholders of the Company to approve or disapprove, any shareholder
proposal;
(d) enter into any shareholders' agreement or other agreement of
similar effect with respect to the ownership or disposition of any shares
of Common Stock of the Company or the voting of any shares of Common Stock
or the control of the Company, or deposit any securities in a voting trust
or subject such securities to a voting trust agreement or any other
agreement of similar effect with respect to the Company, other than, in
each such case, an agreement, voting trust or other arrangement involving
only Texmaco and its Affiliates;
(e) except for the purpose of assuring the election of the three
Texmaco designees to the Board of Directors to the extent contemplated by
Section 5 hereof, seek to advise, encourage or influence any person with
respect to the voting of any securities of the Company, or induce, attempt
to induce or in any manner assist any other Person in
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<PAGE> 6
initiating any shareholder proposal or a tender or exchange offer for
securities of the Company or any change of control of the Company, or for
the purpose of convening a shareholders meeting of the Company;
(f) take any action (or permit any investment banker, attorney,
accountant or any other representative retained by Texmaco or of any of its
Affiliates to take any action), directly or indirectly, to (A) acquire or
affect control of the Company, (B) participate in, or encourage the
formation of, any Group (as defined in Rule 13d-5 under the 1934 Act) with
respect to any shares of capital stock of the Company (other than a Group
consisting solely of Texmaco and its Affiliates) or (C) initiate contact
with any Person in an effort to solicit, encourage or assist that Person in
any proposal for a merger or other business combination involving the
Company or for the acquisition of any of the Company's capital stock or any
of the Company's assets;
(g) make any public announcement or make any written or oral proposal
or invitation to discuss any possibility, intention, plan or arrangement,
relating to a tender or exchange offer for securities of the Company or a
business combination (or other similar transaction which would result in a
change of control), sale of assets, liquidation or other extraordinary
corporate transaction between Texmaco or any of its Affiliates and the
Company or take any action which might require the Company to make a public
announcement regarding any of the foregoing; or
(h) enter into any oral or written contract, arrangement or
understanding with respect to any of the foregoing.
4. Registration Rights.
4.1 Request for Registration.
(a) Subject to compliance with the provisions of Section 2(c)(iv)
hereof, if the Company shall receive at any time after April 4, 1998 a
written request from the Holders of the Registrable Securities then
outstanding and entitled to registration rights under this Section 4 (the
"Initiating Holders") that the Company effect the registration under the
1933 Act of at least 20% of the Registrable Securities then outstanding, or
a lesser percentage if the aggregate offering price of the Registrable
Securities for which a request has been made under this Section 4.1(a) is
expected to be at least $10,000,000, then the Company shall, within five
(5) days of the receipt thereof, give written notice of such request to all
Holders and shall, subject to the limitations of this Section 4.1, use its
best efforts to effect such a registration as soon as practicable by filing
a registration statement under the 1933 Act covering all the Registrable
Securities which the Holders shall in writing request (given within twenty
(20) days of receipt of the notice given by the Company pursuant to this
Section 4.1(a)) to be included in such registration and to use its best
efforts to have such registration statement become effective.
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<PAGE> 7
(b) Notwithstanding the foregoing, the Company shall not be obligated
to effect the filing of a registration statement pursuant to this Section
4.1 (i) if the Initiating Holders do not request that such offering be
firmly underwritten by underwriters reasonably acceptable to the Company,
(ii) if the Company and the Initiating Holders are unable to obtain the
commitment of the underwriter(s) described in (i) above to firmly
underwrite the offering, or (iii) during the period starting with the date
60 days prior to the Company's good faith estimate of the date of filing
of, and ending on a date 180 days following the effective date of, a
registration statement pertaining to the underwritten public offering of
securities for the account of the Company. If the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 4.1 a
certificate signed by the President of the Company stating that in the good
faith judgment of the Disinterested Members of the Board of Directors of
the Company, it would be seriously detrimental to the Company and its
shareholders generally for such registration statement to be filed, the
Company shall have the right to defer such filing for a period of not more
than 180 days after receipt of the request of the Initiating Holders;
provided, however, that the Company may not utilize such right more than
twice in any eighteen-month period.
(c) The right of any Holder to include its Registrable Securities in
such registration shall be conditioned upon such Holder's participation in
the underwriting and the inclusion of such Holder's Registrable Securities
in the underwriting to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with
the Company as provided in Section 4.4(d)) enter into an underwriting
agreement in the usual and customary form for similar transactions with the
managing underwriter or underwriters selected for such underwriting.
Notwithstanding any other provision of this Section 4.1, if, in the case of
a registration requested pursuant to Section 4.1(a), the managing
underwriter advises the Initiating Holders and the Company in writing that
marketing factors require a limitation of the number of Shares to be
underwritten, then the Initiating Holders shall so advise the Company and
all Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of Registrable Securities that may be
included in the underwriting shall be allocated pro rata among all Holders
thereof desiring to participate in such underwriting (according to the
number of Registrable Securities then held by each Holder). No Registrable
Securities requested by a Holder to be included in a registration pursuant
to Section 4.1(a) shall be excluded from the underwriting unless all
securities other than Registrable Securities are first excluded.
(d) The Company is obligated to effect only two registrations pursuant
to Section 4.1(a); provided, however, that no registration of Registrable
Securities which shall not have become and remained effective in accordance
with Section 4.4 hereof shall be included in the calculation of the number
of registrations contemplated by this Section 4.1.
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<PAGE> 8
4.2 Company Registration. At any time after April 4, 1998, if (but without
any obligation to do so) the Company proposes to register for its own account
any of its Common Stock under the 1933 Act in connection with the public
offering of such Common Stock solely for cash (other than a registration on Form
S-8 or any successor form relating solely to the sale of securities to
participants in a Company stock plan, or a registration on Form S-4 or any
successor form), the Company shall, at such time, promptly give each Holder
written notice of such registration. Upon the written request of any Holder
given within twenty (20) days after mailing of such notice by the Company, the
Company shall, subject to the provisions of Section 4.7, use its best efforts to
cause a registration statement covering all of the Registrable Securities that
each such Holder has requested to be registered to become effective under the
1933 Act. Any Holder who elects to participate in such a registration may
withdraw such election within two (2) business days prior to the registration
statement therefor becoming effective by providing written notice to the
Company.
4.3 Form S-3 Registration. In case the Company shall receive from any
Holder or Holders at any time on or after April 4, 1998 a written request or
requests that the Company effect a registration on Form S-3 and any related
qualification or compliance with respect to all or a part of the Registrable
Securities owned by such Holder or Holders, the Company, subject to compliance
with the provisions of Section 2(c)(iv) hereof, will:
(a) promptly give written notice of the proposed registration, and any
related qualification or compliance, to all other Holders; and
(b) use its best efforts to effect, as soon as practicable, such
registration, qualification or compliance as may be so requested and as
would permit or facilitate the sale and distribution of all or such portion
of such Holder's or Holders' Registrable Securities as are specified in
such request, together with all or such portion of the Registrable
Securities of any other Holder or Holders joining in such request as are
specified in a written request given within twenty (20) days after receipt
of such written notice from the Company; provided, however, that the
Company shall not be obligated to effect any such registration,
qualification or compliance pursuant to this Section 4.3 if: (1) Form S-3
is not available for such offering by the Holders; (2) the aggregate net
offering price (after deduction of underwriting discounts and commissions)
of the Registrable Securities specified in such request does not exceed
$3,000,000; (3) the Company has already effected one registration on Form
S-3 within the previous twelve-month period; (4) the Company has already
effected three registrations on Form S-3 pursuant to this Section 4.3; or
(5) the Company shall furnish to the Holders a certificate signed by the
President of the Company stating that in the good faith judgment of the
Board of Directors of the Company, it would be seriously detrimental to the
Company and its shareholders for such Form S-3 registration to be effected
at such time, in which event the Company shall have the right to defer the
filing of the Form S-3 registration for a period of not more than 180 days
after receipt of the request of the Holder or Holders under this Section
4.3;
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<PAGE> 9
provided, however, that the Company shall not utilize this right more than
twice in any eighteen-month period.
4.4 Obligations of the Company. Whenever required under this Section 4 to
use its best efforts to effect the registration of any Registrable Securities,
the Company shall, as expeditiously as reasonably possible, prepare and file
with the Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for up to 45 days or until the Holders have informed the Company in
writing that the distribution of their securities has been completed, whichever
first occurs; and shall:
(a) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement, and use its best efforts to
cause each such amendment to become effective, as may be necessary to
comply with the provisions of the 1933 Act with respect to the disposition
of all securities covered by such registration statement; provided,
however, that at least seven (7) days prior to filing a registration
statement, prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the
registration statement, the Company shall furnish to the Holders of the
Registrable Shares covered by such registration statement, such Holders'
counsel and the underwriters draft copies of all such documents proposed to
be filed.
(b) Furnish to the Holders such reasonable number of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(c) Use its best efforts to register or qualify the securities covered
by such registration statement under such other securities or Blue Sky laws
of such jurisdictions as shall be reasonably requested by the Holders
provided that the Company shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(d) Enter into and perform its obligations under an underwriting
agreement, in the usual and customary form for similar transactions, with
the managing underwriter or underwriters of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement, including furnishing any opinion of
counsel or entering into a lock-up agreement in the usual or customary form
for similar transactions, requested by the managing underwriter or
underwriters.
(e) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto
covered by such registration
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<PAGE> 10
statement is required to be delivered under the 1933 Act, of the happening
of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing and promptly file such amendments
and supplements which may be required pursuant to subparagraph (b) of this
Section 4.4 on account of such event and use its best efforts to cause each
such amendment and supplement to become effective.
(f) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Section 4, on the date that such
Registrable Securities are delivered to the underwriters for sale in
connection with a registration pursuant to this Section 4, if such
securities are being sold through underwriters, (i) an opinion or opinions,
dated such date, of the counsel representing the Company for the purposes
of such registration, in form and substance as is customarily given by
company counsel to the underwriters in an underwritten public offering,
addressed to the underwriters, if any, and (ii) a letter dated such date,
from the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering, addressed
to the underwriters, if any.
(g) Make available at reasonable times for inspection by Holders of
Registrable Securities covered by such registration statement, and the
underwriters, and any attorney, accountant or other agent retained by any
such Holder or underwriter, all pertinent financial and other records, and
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors, employees, independent accountants and other
agents to supply all information reasonably requested by any such Holder,
underwriter, attorney, accountant or agent in connection with such
registration statement.
(h) Notify each Holder of Registrable Securities to be included in
such registration statement of any request by the Commission for the
amending or supplementing of such registration statement or for additional
information.
(i) Cause all Registrable Securities to be listed on the New York
Stock Exchange or such other exchange on which the Common Stock may be
listed at the time of registration.
(j) In connection with an underwritten offering pursuant to Section
4.1(a) or Section 4.3, participate, to the extent reasonably requested by
the managing underwriter for the offering, in customary efforts to sell the
securities under the offering, including, without limitation, participating
in "road shows."
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4.5 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 4 in
respect of the Registrable Securities of any selling Holder that such selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them, and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
4.6 Expenses of Registration. All Registration Expenses and Selling
Expenses incurred in connection with any registration, qualification or
compliance pursuant to Section 4.1(a) or Section 4.3 shall be borne by the
Holders pro rata on the basis of the number of Shares so registered on their
behalf. All Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to Section 4.2 hereof shall be borne by the
Company and all Selling Expenses relating to securities so registered for the
benefit of the Holders shall be borne by the Holders pro rata on the basis of
the number of Shares so registered on their behalf.
4.7 Underwriting Requirements. In connection with any offering involving an
underwriting of securities being issued by the Company, the Company shall not be
required under Section 4.2 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by it (which terms shall
include such representations and warranties by the Holders and such other terms
and provisions as are customarily contained in such underwriting agreements). If
the managing underwriter for the offering shall advise the Company in writing
that the total amount of securities, including Registrable Securities, requested
by Holders to be included in such offering exceeds the amount of securities to
be sold other than by the Company that can be successfully offered, then the
Company shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the managing underwriter
reasonably believes will not jeopardize the success of the offering (the
securities so included to be reduced as follows: all securities other than those
to be included by the Company for its own account that may be included in the
underwriting shall be reduced pro rata among the selling Holders in accordance
with the number of shares held by such Holder).
4.8 Indemnification. In the event any Registrable Securities are included
in a registration statement under this Section 4:
(a) The Company will indemnify and hold harmless each Holder, the
officers, directors, partners, agents and employees of each Holder, any
underwriter (as defined in the 1933 Act) and each person, if any, who
controls such Holder or underwriter within the meaning of the 1933 Act or
the 1934 Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the 1933 Act, the 1934 Act
or other federal or state law, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (each, a
"Violation"): (i) any untrue statement or alleged untrue statement of a
material fact contained in such registration statement,
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including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the 1933 Act,
the 1934 Act or any state securities law in connection with any matter
relating to such registration statement. The Company will reimburse each
such Holder, officer, director, partner, agent, employee, underwriter or
controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability, or action. The indemnity agreement contained in this
subsection 4.8(a) shall not apply to amounts paid in settlement of any
loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable to a Holder in any such case for
any such loss, claim, damage, liability, or action (i) to the extent that
it arises out of or is based upon a Violation which occurs in reliance upon
and in conformity with written information furnished expressly for use in
connection with such registration by or on behalf of such Holder,
underwriter or controlling person or (ii) in the case of a sale directly by
a Holder of Registrable Securities (including a sale of such Registrable
Securities through any underwriter retained by such Holder to engage in a
distribution solely on behalf of such Holder), such untrue statement or
alleged untrue statement or omission or alleged omission was contained in a
preliminary prospectus and corrected in a final or amended prospectus, and
such Holder failed to deliver a copy of the final or amended prospectus at
or prior to the confirmation of the sale of the Registrable Securities to
the person asserting any such loss, claim, damage or liability in any case
where such delivery is required by the 1933 Act.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration,
qualification, or compliance is being effected, indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed
the registration statement, each person, if any, who controls the Company
within the meaning of the 1933 Act, each agent and any underwriter for the
Company, and any other Holder selling securities in such registration
statement or any of its directors, officers, partners, agents or employees
or any person who controls such Holder or underwriter, against any losses,
claims, damages, or liabilities (joint or several) to which the Company or
any such director, officer, controlling person, agent, or underwriter or
controlling person, or other such Holder or director, officer or
controlling person may become subject, under the 1933 Act, the 1934 Act or
other federal or state law, insofar as such losses, claims, damages or
liabilities (or actions in respect thereto) arise out of or are based upon
any Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished by or on behalf of such Holder expressly for use in
connection with such registration; and each such Holder will reimburse any
legal or other expenses
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reasonably incurred by the Company or any such director, officer,
controlling person, agent or underwriter or controlling person, other
Holder, officer, director, partner, agent, employee, or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the liability of any Holder
hereunder shall be limited to the amount of gross proceeds received by such
Holder in the offering giving rise to the Violation; and provided further
that the indemnity agreement contained in this subsection 4.8(b) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of
the Holder, which consent shall not be unreasonably withheld nor, in the
case of a sale directly by the Company of its securities (including a sale
of such securities through any underwriter retained by the Company to
engage in a distribution solely on behalf of the Company), shall the Holder
be liable to the Company in any case in which such untrue statement or
alleged untrue statement or omission or alleged omission was contained in a
preliminary prospectus and corrected in a final or amended prospectus, and
the Company failed to deliver a copy of the final or amended prospectus at
or prior to the confirmation of the sale of the securities to the person
asserting any such loss, claim, damage or liability in any case where such
delivery is required by the 1933 Act.
(c) Promptly after receipt by an indemnified party under this Section
4.8 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 4.8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume and control the defense
thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the fees and expenses to be paid by the indemnifying party,
if representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
differing interests, as reasonably determined by either party, between such
indemnified party and any other party represented by such counsel in such
proceeding; and provided further that, in any event, the indemnified party
shall have the right to retain its own counsel at its own expense, and such
counsel shall be permitted to participate reasonably in the proceedings.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action, if prejudicial to
its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 4.8 to the extent
of such prejudice, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to
any indemnified party otherwise than under this Section 4.8.
(d) If the indemnification provided for in this Section 4.8 is
unavailable to a party that would have been an indemnified party under such
Section in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred
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to therein, then each party that would have been an indemnifying party
thereunder shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to
reflect the relative fault of such indemnifying party on the one hand and
such indemnified party on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof). The relative fault shall be
determined by reference to, among other things, whether the Violation
relates to information supplied by such indemnifying party or such
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The
parties agree that it would not be just and equitable if contribution
pursuant to this Section 4.8(d) were determined by pro rata allocation or
by any other method of allocation which does not take account of the
equitable considerations referred to in the preceding sentence. The amount
paid or payable by a contributing party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this Section 4.8(d) shall include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 10(f) of the
1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The liability of any Holder of
Registrable Securities in respect of any contribution obligation of such
Holder arising under this Section 4.8(d) shall not in any event exceed an
amount equal to the gross proceeds to such Holder from the disposition of
the Registrable Securities disposed of by such Holder pursuant to such
registration.
4.9 Choice of Managing Underwriter. With respect to any registration
effected pursuant to Sections 4.1(a), 4.2 or 4.3, the Company shall be entitled
to choose the managing underwriter or underwriters of the offering to which such
registration applies; provided that the selection of such underwriter(s) shall
be reasonably acceptable to the Holders of Registrable Securities being included
in such registration.
4.10 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Section 4 may be assigned in
whole or in part by any Holder to any transferee provided such transferee (i)
acquires from the Holder Registrable Securities representing at least 3% of the
Company's Outstanding Common Stock, and (ii) shall (a) as a condition to such
transfer, deliver to the Company a written instrument by which such transferee
agrees to be bound by the obligations imposed upon Holders under this Agreement
to the same extent as if she, he or it were a Holder under this Agreement and
(b) be deemed to be a Holder hereunder.
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5. Board of Directors; Approval of Transactions.
(a) Promptly following the Effective Date, the Company's Board of
Directors shall fill the vacancies created on the Board of Directors by the
resignations of John D. Howard, Julius Koppelman and Daniel W. Miller with
three designees of Texmaco. The Texmaco designees shall be senior executive
officers of Texmaco Jaya or its Affiliates reasonably acceptable to the
Chairman of the Company's Board of Directors. The Disinterested Members of
the Board of Directors shall, subject to the remaining provisions of this
Section 5 and to fulfilling applicable fiduciary duties, recommend each of
the Texmaco designees for election at each annual meeting of the Company's
shareholders at which each such designee shall stand for election. Texmaco
shall provide the Company with notice of the Texmaco designee not later
than 120 days prior to the scheduled date for the ensuing annual meeting.
In the absence of timely designation from Texmaco, the Texmaco designee
then serving whose term is expiring shall be renominated if still eligible
to serve.
(b) Texmaco shall be entitled to name a new designee to fill any
vacancy on the Board of Directors created by the resignation, removal,
incapacity or death of a Texmaco designee. The Disinterested Members of the
Board of Directors shall, subject to the remaining provisions of this
Section 5 and to applicable fiduciary duties, vote to fill such vacancy
with the new Texmaco designee.
(c) At such time, if ever, as Texmaco and its Affiliates own less than
20% but at least 15% of the Outstanding Common Stock, Texmaco shall only be
entitled to two designees to the Board of Directors. At such time, if ever,
as Texmaco and its Affiliates own less than 15% but at least 10% of the
Outstanding Common Stock, Texmaco shall only be entitled to one designee to
the Board of Directors. At such time, if ever, as Texmaco and its
Affiliates own less than 10% of the Outstanding Common Stock, Texmaco shall
not be entitled to any designees to the Board of Directors. Immediately
upon the occurrence of any such event, Texmaco shall cause the appropriate
number of its designees to resign from the Company's Board of Directors and
the obligations of the Disinterested Members of the Board of Directors
pursuant to Section 5(a) and the rights afforded to Texmaco pursuant to
Section 5(b) shall be adjusted accordingly.
(d) Texmaco will, and will cause its Affiliates to, vote any shares of
Common Stock beneficially owned by any of them in accordance with the
recommendation of the Disinterested Members of the Board of Directors with
respect to the election of directors. Texmaco shall use its best efforts to
cause the Company's Board of Directors to include four members who are not
Affiliates of Texmaco or its Affiliates. Texmaco agrees that any
transaction between the Company and Texmaco or its Affiliates shall be on
terms no less favorable than those which would be obtained from
unaffiliated parties in an arms' length transaction and must be approved by
the Disinterested Members of the Board of Directors. Notwithstanding the
foregoing, transactions in the ordinary course of business
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on terms no less favorable than could be obtained from unaffiliated parties
when the size of the transaction or group of related transactions does not
exceed $1,000,000 shall be permitted without requiring the prior approval
of the Disinterested Members of the Board of Directors.
(e) So long as Texmaco or its Affiliates beneficially own Common
Stock, Texmaco or such Affiliate shall be present, in person or by proxy,
at all meetings of shareholders of the Company so that all Common Stock
beneficially owned by Texmaco or any Affiliate may be counted for the
purpose of determining the presence of a quorum at such meeting.
(f) Notwithstanding the foregoing, if Texmaco and its Affiliates
acquire more than 50% of the Outstanding Common Stock on or before the date
that is eighteen months following the Effective Date, then immediately upon
such acquisition subsections 5(a), (b) and (d) shall no longer be
applicable to the parties except as follows:
(i) Texmaco shall continue to use its best efforts to cause the
Company's Board of Directors to include at least four Disinterested
Members of the Board of Directors;
(ii) Texmaco agrees that any transaction between the Company and
Texmaco or its Affiliates shall be on terms no less favorable than
those which would be obtained from unaffiliated parties in arms'
length transactions and must be approved by the Disinterested Members
of the Board of Directors; provided, however, that transactions in the
ordinary course of business on terms no less favorable than could be
obtained from unaffiliated parties when the size of the transaction or
group of related transactions does not exceed $1,000,000 shall be
permitted without requiring the prior approval of the Disinterested
Members of the Board of Directors; and
(iii) Texmaco agrees that three of its representatives to the
Board of Directors shall be senior executive officers of Texmaco Jaya
or its Affiliates.
6. Participation Rights in Connection with Future Issuances by the Company.
(a) Subject to the remaining provisions of this Section 6, in the
event the Company shall issue additional shares of Common Stock or
securities convertible into or exchangeable for Common Stock (collectively,
"Additional Securities"), Texmaco shall have the right to purchase
Additional Securities in that amount necessary to enable Texmaco to
maintain its percentage ownership in the Outstanding Common Stock
immediately preceding such issuance by the Company. If and when Section 3
becomes applicable to Texmaco and its Affiliates, Texmaco shall continue to
have the right to purchase Additional Securities under this Section 6.
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(b) If the Company proposes to undertake an issuance of Additional
Securities, it shall give Texmaco written notice of its intention
describing the type of Additional Securities, the anticipated price, the
amount of Additional Securities to be issued, and the general terms and
conditions upon which the Company proposes to issue the same. Except as
hereinafter provided in this Section 6(b), the notice shall provide that
Texmaco shall have twenty (20) days from the giving of such notice to agree
to purchase Additional Securities by giving written notice to the Company
and stating therein the amount of Additional Securities to be purchased by
Texmaco. The parties agree that in the event of the proposed issuance of
Additional Securities in connection with (i) a firm commitment underwritten
public offering, the Company shall provide Texmaco written notice of such
proposed issuance at least ten (10) days prior to the filing of the
registration statement with the Commission with respect to such issuance
and Texmaco shall have ten (10) days following the date of such filing to
notify the Company of the amount of Additional Securities to be purchased
by Texmaco, (ii) an acquisition (whether by merger or otherwise) by the
Company or any of its subsidiaries of the stock or assets of another
company (an "Acquisition") or a private placement of senior or subordinated
indebtedness of the Company (a "Financing"), the Company shall provide
Texmaco with the anticipated terms of such Acquisition or Financing,
including the amount of Additional Securities anticipated to be issued in
connection therewith, and Texmaco shall have twenty (20) days from such
date to notify the Company of the quantity of Additional Securities to be
purchased by Texmaco.
(c) Except as hereinafter provided in this Section 6(c), any
Additional Securities purchased by Texmaco hereunder shall be purchased for
the price and upon the terms and conditions upon which the Company issues
the Additional Securities to a third party. In the event of a firm
commitment underwritten public offering, the price to be paid by Texmaco
for the Additional Securities it elects to purchase shall be the price to
the public as reflected in the registration statement relating thereto. In
the event the Company shall issue Additional Securities consisting of
securities convertible into or exchangeable for Common Stock, the option
price, conversion price or exchange ratio for such Additional Securities as
Texmaco shall elect to purchase hereunder shall be based on the greater of
such price or ratio as specified in the Company's notice or the fair market
value of the Common Stock (as hereinafter defined). In the event the
Company shall issue Additional Securities in connection with an Acquisition
or a Financing, the price to be paid by Texmaco for the Additional
Securities it elects to purchase shall be based on the fair market value of
the Common Stock.
(d) The right to purchase Additional Securities set forth in this
Section 6 shall not apply to (i) stock dividends, stock splits,
recapitalizations or other subdivisions of shares of Common Stock, (ii)
shares of Common Stock or related options exercisable for capital stock of
the Company issued to employees, officers and directors of, and consultants
to, the Company pursuant to the 1992 Stock Incentive Plan, or (iii) stock
issued pursuant to any rights or agreement, including, without limitation,
convertible
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securities, options and warrants, provided that the rights established by
this Section 6 apply with respect to the initial grant or sale by the
Company of such rights or agreement.
(e) If Texmaco fails to exercise the rights provided in this Section 6
within the applicable time periods provided for herein, the Company shall
have one hundred and eighty (180) days thereafter to sell the Additional
Securities at a price and upon general terms and conditions not materially
more favorable to the purchasers thereof than specified in the Company's
notice pursuant to Section 6(b) above. If the Company has not sold the
Additional Securities within such one hundred and eighty (180) days, the
Company shall not thereafter issue or sell any Additional Securities
without first complying with the provisions of this Section 6.
(f) For purposes of this Section 6, "fair market value of the Common
Stock" means, as of any date, the average of the reported closing sale
price of the Common Stock on the New York Stock Exchange for the twenty
(20) trading days which end five (5) days prior to such date.
7. Representations and Warranties of the Company. The Company represents
and warrants to Texmaco as follows:
(a) No Undisclosed Restrictions. To the Company's knowledge, the
Shares purchased by Texmaco pursuant to the Purchase Agreement are not
subject to any holding period, right of first refusal, voting rights
restrictions or any restrictions with respect to their transferability,
other than restrictions on transfer under applicable securities laws and as
expressly set forth in this Agreement. The provisions of the Tennessee
Control Share Acquisition Act are not applicable to the Company and the
Company's Board of Directors has approved the transactions contemplated by
the Purchase Agreement in accordance with the provisions of the Tennessee
Business Combination Act.
(b) No Conflict. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby and by the
Purchase Agreement will not (i) result in a violation of, or require any
authorization, approval, consent or other action by, or registration or
filing with, any court or administrative or governmental body pursuant to
any statute, law or regulation applicable to the Company, or (ii) conflict
with or result in a breach or default under any contract or agreement of
the Company to which the Shares are subject.
8. Termination of this Agreement. Unless otherwise specified, this
Agreement, and the respective rights and obligations of the parties hereto,
shall terminate upon the earlier of:
(a) the execution and delivery by the Company and the Parties (as
hereinafter defined) of a written agreement terminating this Agreement, or
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(b) the sale of all Acquired Shares pursuant to Section 2(a), 2(b),
2(c)(iii) or 2(c)(iv) hereof.
The "Parties" shall mean (i) Texmaco unless Texmaco has Transferred all of
its interest in Acquired Shares in a Transfer permitted by this Agreement and
(ii) any subsequent transferee pursuant to Section 2(c)(i) or Section 2(c)(ii)
hereof.
9. Assignment; Benefit. This Agreement and all of the provisions hereof
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs assigns, executors, administrators, or successors.
10. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Tennessee applicable to agreements made and
to be performed wholly within that jurisdiction. Each of the parties hereto
hereby irrevocably and unconditionally consents to submit to the exclusive
jurisdiction of the courts of the United States of America located in the State
of Georgia for any litigation arising out of or relating to this Agreement and
the transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), and further agrees that service of any
process, summons, notice, or document by U.S. registered mail to its respective
address set forth in Section 11 shall be effective service of process for any
litigation brought against it in any court. Each of the parties hereto
irrevocably and unconditionally waives any objection to the laying of venue in
any litigation arising out of this Agreement or the transactions contemplated
hereby in the courts of the United States of America located in the State of
Georgia and hereby further irrevocably and unconditionally waives and agrees not
to plead or claim in any such court that any such litigation brought in any such
court has been brought in an inconvenient forum.
11. Notices. All notices, consents, requests, instructions, approvals or
other communications required or permitted hereunder shall be in writing and
shall be validly given if delivered personally or when sent by registered or
certified mail addressed as follows:
If to the Company, to:
Dyersburg Corporation
1315 Phillips Street
Dyersburg, Tennessee 38024-0767
Attention: President
With a copy to:
Bass, Berry & Sims PLC
2700 First American Center
Nashville, Tennessee 37238
Attention: J. Page Davidson
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If to Texmaco, to:
c/o PT. Texmaco Jaya
Sentra Mulia Suite 1008, 10th Floor
JI H.R. Rasuna Said Kay, X-6 No. 8
Jakarta 12940, Indonesia
Attention: P. Manohar
With a copy to:
Alston & Bird
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: B. Harvey Hill, Jr.
or to such other address as such party may indicate by a notice delivered to the
other party hereto. Notice given by mail as set forth above shall be deemed
delivered five days after the date the same is postmarked. With respect to
transferee Parties, all notices or other communications shall be delivered to
the address specified in the relevant agreement in the form of Exhibit A whereby
the transferee became bound by the provisions of this Agreement.
12. Entire Agreement; Integration. This Agreement supersedes all prior
agreements between or among any of the parties hereto with respect to the
subject matter contained herein and therein, and such Agreement embodies the
entire understanding among the parties relating to such subject matter.
13. Injunctive Relief. Each of the parties hereto acknowledges that in the
event of a breach by any of them of any material provision of this Agreement,
the aggrieved party may be without an adequate remedy at law. Each of the
parties therefore agrees that in the event of such a breach hereof the aggrieved
party may elect to institute and prosecute proceedings in any court of competent
jurisdiction set forth in Section 10 herein, to enforce specific performance or
to enjoin the continuing breach hereof. By seeking or obtaining any such relief,
the aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
14. Transfer of Shares; Legend. Texmaco understands and agrees that the
Shares acquired pursuant to the Purchase Agreement have not been registered
under the 1933 Act or the securities laws of any state. Accordingly, Texmaco
agrees to transfer any Acquired Shares held by it only in full compliance with
the terms and conditions of this Agreement and with the 1933 Act. The
certificates representing the Acquired Shares shall state therein:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO THE PROVISIONS OF AN AGREEMENT
DATED AS OF APRIL 8, 1997 BETWEEN THE COMPANY
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AND PT. TEXMACO JAYA, A COPY OF WHICH IS ON FILE
AT THE OFFICES OF THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO
THE REGISTRATION REQUIREMENTS OF SUCH ACT OR
SUCH LAWS.
In addition, Texmaco shall cause to be presented promptly all certificates
representing Shares hereafter acquired by Texmaco or its Affiliates, for the
placement thereon of the above legend. The Company may enter a stop transfer
order with the transfer agent or agents of the Shares against the transfer of
Shares except in compliance with the requirements of this Agreement.
15. Section Headings. Section headings are for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and all of which shall
together constitute one and the same instrument. All signatures need not be on
the same counterpart.
17. Severability. If any provision of this Agreement shall be invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
18. Amendment and Waiver. This Agreement may be amended, and the observance
of any term hereof may be waived, with (and only with) the written consent of
the Company and the parties hereto. No such amendment or waiver will extend to
or affect any obligation, covenant or agreement not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the Company
and Texmaco (or any other Parties) nor any delay in exercising any rights
hereunder shall operate as a waiver of any rights hereunder.
19. Filing. A copy of this Agreement and of all amendments hereto shall be
filed at the principal executive office of the Company.
20. Attorney's Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful
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party shall be entitled to recover reasonable attorneys' fees (including any
fees incurred in any appeal) in addition to its costs and expenses and any other
available remedy.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
DYERSBURG CORPORATION
By: /s/ T. Eugene McBride
Its: President
POLYSINDO HONG KONG LIMITED
By: /s/ P. Manohar
Its: Vice President - Finance
The undersigned hereby agrees to be bound by the terms of this Agreement
with the same effect as if the undersigned were named as Texmaco herein.
PT. TEXMACO JAYA
By: /s/ Sinivasan Marimutu
Its: President/Director
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EXHIBIT A
AGREEMENT TO BE BOUND
The undersigned, being the [transferee] of __________ shares of the common
stock, $0.01 par value, of Dyersburg Corporation, a Tennessee corporation (the
"Company"), as a condition to the receipt of such securities, acknowledges that
matters pertaining to such securities are governed by an Agreement dated as of
April __, 1997 (the "Agreement") initially between the Company and Polysindo
Hong Kong Limited (the "Transferor") and the undersigned hereby (1) acknowledges
receipt of a copy of the Agreement, and (2) agrees to be bound by the terms of
the Agreement, with the same effect as if the undersigned were originally named
as the Transferor under the Agreement.
Agreed to this _____ day of ______________, ______.
________________________________
________________________________*
________________________________*
*Include address for notices.
