EXHIBIT NO. 10.168
AMENDED AND RESTATED
JOINT VENTURE AGREEMENT
BETWEEN
HIMAL INTERNATIONAL POWER CORPORATION LTD.,
PANDA OF NEPAL,
RDC OF NEPAL
and
INTERNATIONAL FINANCE CORPORATION
KATHMANDU, NEPAL
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
SECTION 2. FORMATION OF THE COMPANY 6
SECTION 3. MAIN OBJECTIVES 7
SECTION 4. ROLES OF THE PARTIES 7
SECTION 5. ARTICLES OF ASSOCIATION 7
SECTION 6. SHARE CAPITAL 8
SECTION 7. TRANSFER OF SHARES 9
SECTION 8. PRE-EMPTIVE RIGHTS 10
SECTION 9. GENERAL MEETINGS OF SHAREHOLDERS 11
SECTION 10. PROCEEDINGS AT GENERAL MEETINGS 14
SECTION 11. VOTE OF SHAREHOLDERS 15
SECTION 12. DECISIONS 15
SECTION 13. DIRECTORS 21
SECTION 14. CHIEF EXECUTIVE OFFICER 22
SECTION 15. STATUTORY AUDITOR 22
SECTION 16. LOAN/WORKING CAPITAL 23
SECTION 17. FISCAL PERIOD 23
SECTION 18. FINANCIAL PERIOD 23
SECTION 19. ACCOUNTING PRACTICES 23
SECTION 20. PAYMENT AND TAX MATTERS 24
SECTION 21. NON-ASSIGNABILITY 25
SECTION 22. EFFECTIVE DATE 25
SECTION 23. DURATION 25
SECTION 24. TERMINATION 26
SECTION 25. MODIFICATION 26
SECTION 26. GOVERNING LAW 26
SECTION 27. ARBITRATION 26
SECTION 28. NON-COMPETITION 28
SECTION 29. FUTURE PROJECT DEVELOPMENT 28
SECTION 30. CONFIDENTIALITY 29
SECTION 31. CORRUPT PRACTICES 29
SECTION 32. FORCE MAJEURE 30
SECTION 33. APPROVAL AND LICENSE 30
SECTION 34. LANGUAGE 30
SECTION 35. NOTICE 30
AMENDED AND RESTATED
JOINT VENTURE AGREEMENT
PREAMBLE
WHEREAS Himal International Power Corporation Ltd.
(hereafter referred to as "HIPC") is a power
generation and distribution Company established in
Nepal having its office at Soaltee Hotel Ltd.
Tachachal, Kathmandu, Nepal.
WHEREAS Panda of Nepal (hereafter referred to as "PANDA OF
NEPAL") is a power generation and distribution
Company established in Cayman Islands, and is a
subsidiary of Panda Energy International, Inc., a
Texas (USA) corporation, having its registered
office at c/▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.O. Box 309,
▇▇▇▇▇▇ House, South Church Street, Grand Cayman,
Cayman Islands.
WHEREAS RDC of Nepal (hereafter referred to as "RDC OF
NEPAL") is a power generation and distribution
Company established in Cayman Islands and a having
its registered office at c/o ▇.▇. ▇▇▇▇▇▇ & Co.,
lst Floor, Caledonian House, ▇▇▇▇ Street, P.O. Box
265 G, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands,
is a subsidiary of Resource Development
Consultants, a Wyoming (USA) limited liability
company.
WHEREAS International Finance Corporation (hereafter
referred to as "IFC") is an international
organization established by Articles of Agreement
among its member countries having its offices at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, ▇▇▇.
WHEREAS The Parties hereto have decided to establish a Joint
Venture Company limited by shares through which to
achieve their objective of hydropower generation
at the Upper Bhote Koshi site, in Nepal, for which
HIPC has already received the license.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. DEFINITIONS
"ACT" means the Company Act, as in effect from
time to time, including any amendments thereto;
"AFFILIATE(S)" shall mean any person or entity
that directly or indirectly (through one or more
intermediaries) controls or is controlled by or
under common control with the Party specified.
For purposes of this definition, control of a
person or entity means the power, direct or
indirect, to cause or determine the direction of
the management and policies of such person or
entity (whether by ownership of securities,
contract or otherwise);
"AGREEMENT" means this Amended and Restated Joint
Venture Agreement dated as of Financial Closing
Date between Nepali Party and Foreign Parties;
"ARTICLES" means the Amended and Restated Articles
of Association of the Company and amendments made
thereto from time to time;
"BUSINESS DAY" shall mean any Day on which the
offices of HMGN are not closed in Kathmandu,
Nepal;
"COMPANY" means Bhote Koshi Power Company Private
Limited incorporated under the Company Act, 2021
(1964);
"CONCERNED DEPARTMENT" means the Department of
Industries, office of the Company Registrar or any
other department or office designated by HMGN from
time to time to regulate companies in Nepal;
"DAY" shall mean the twenty-four hour period
beginning at 0:00 hours Nepalese Standard Time;
"DEG" shall mean DEG-Deutsche Investitions- und
Entwicklungsgesellschaft mbH, a company organized
and existing under the laws of the Federal
Republic of Germany;
"DEG INVESTMENT AGREEMENT" shall mean the DEG
Investment Agreement dated as of the Closing Date
between the Company and DEG and shall include the
DEG Special Conditions and the General Conditions;
"DEG LOAN" shall mean the loan specified in
Section 3.1 (a) of the DEG Special Conditions or,
as the context may require, the principal amount
thereof from time to time outstanding;
"DEG SPECIAL CONDITIONS" shall mean the DEG
Special Conditions dated as of the Closing Date
between the Company and DEG;
"DIRECTOR(S)" means the Director(s) appointed by
the Shareholders pursuant hereto and holding
office from time to time as Director(s);
"DIVIDEND" means a distribution of the profits of
the Company;
"DOCUMENT" means words represented in the form of
type, printing or handwriting;
"FINANCIAL CLOSING DATE" means the date on which
IFC makes an initial disbursement;
"FINANCIAL YEAR" means the period between 1
January and ending 31 December for the purpose of
United States and other foreign tax laws;
"FISCAL YEAR" means the fiscal year pursuant to
the laws of Nepal applying to a Nepali Company to
keep its financial accounts and to file its tax
returns;
"FOREIGN PARTIES" collectively, means RDC OF
NEPAL, a Cayman Islands corporation and subsidiary
of Resource Development Consultants, a limited
liability company, of Wyoming, United States,
PANDA OF NEPAL, a subsidiary of Panda Energy
International, Inc., a Texas, United States
corporation, and IFC, an international
organization, which are parties to the Agreement
and "Foreign Party" means any of the foregoing
individually;
"GENERAL CONDITIONS" shall mean the Investment
Agreement General Conditions dated as of the
Closing Date, among the Company, IFC and DEG;
"GOVERNMENTAL AUTHORITY" means the Investment
Promotion Board of HMGN and such relevant agency
or department of HMGN designated to regulate
foreign investment in Nepal including, without
limitation, the Department of Industries of
HMG/Nepal;
"HMGN" shall mean His Majesty's Government of
Nepal, its agencies or departments;
"IFC" means International Finance Corporation, an
international organization established by Articles
of Agreement among its member countries;
"IFC INVESTMENT AGREEMENT" shall mean the IFC
Investment Agreement dated as of the Closing Date
between the Company and IFC and shall include the
IFC Special Conditions and the General Conditions;
"IFC LOANS" means loans made by IFC pursuant to
the nvestment Agreement IFC Special Conditions;
"IFC SHARES" means Shares of the Company to be
acquired by IFC pursuant to the Investment
AgreementIFC Special Conditons;
"IFC SPECIAL CONDITIONS" shall mean the IFC
Special Conditions dated as of___ the Closing Date
between the Company and IFC;
"INTERNAL REVENUE CODE" means the Internal Revenue
Code of the United States;
"INVESTMENT AGREEMENT" shall mean and include the
IFC Investment Agreement dated as
of_______________, 1997 the Closing Date, between
the Company and IFC and the DEG Investment
Agreement dated as of the Closing Date between the
Company and DEG; means the Investment Agreement
dated as of Financial Closing Date between the
Company and IFC;
"LIENS" shall mean any mortgage, pledge,
hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other),
preference, priority or other security agreement
of any kind or nature whatsoever including,
without limitation, (i) any conditional sale or
other title retention agreement, any financing or
similar statement or notice filed under any
recording or notice statute, and any lease having
substantially the same effect as any of the
foregoing, and (ii) any designation (except as
comtemplated by the Investment Agreement) of loss
payees or beneficiaries or additional insureds or
any similar arrangement under any insurance
policy;
"LOANS" shall mean and include the IFC Loans and
the DEG Loan;
"MEMORANDUM" means the Memorandum of Association
of the Company;
"NEA" means the Nepal Electricity Authority and
its successors and assigns;
"NEPALI PARTY" means Himal International Power
Corp. Ltd., a party to the Agreement;
"OFFICE" means the registered office of the
Company;
"PARTIES" means the parties to this Agreement and
each of their assigns and "Party" means any of the
foregoing individually;
"POWER PURCHASE AGREEMENT" means the Power
Purchase Agreement dated July 21, 1996 between the
NEA and the Company concerning the sale of
electrical energy from the Project, as amended
from time to time;
"PROJECT" means the 36 MW hydroelectric power
generation facility known as the Upper Bhote Koshi
Hydroelectric Project to be located on the Bhote
Koshi River in the Sindhupalchok District of
Nepal;
"PROMOTER" means the Shareholders signing the
application for the registration of the Company,
the Memorandum and the Articles (which shall not
include IFC);
"PROXY" means the duly appointed representative of
a Shareholder to attend and vote in any General
Meeting of the Company;
"REGISTER" means the register of the Shareholders
maintained by the Company;
"SCHEDULE A" means the definitions included in
Schedule A to the Investment Agreement as in
effect on the Financial Closing Date;
"SHARE(S)" means the share(s) with a value of
Rupees 100 each in the share capital of the
Company from time to time;
"SHAREHOLDER" means a person whose name has been
registered in the Register of the Company as a
Shareholder;
"SHARE RETENTION AND PROJECT FUNDS AGREEMENT"
means the Share Retention and Projects Funds
Agreement, dated as of _________, 1997, among the
Company, Panda Energy International, Inc., Harza
Engineering Company International, Harza
Engineering Company International L.P., Himal
International Power Corporation Pvt. Ltd., Soaltee
Enterprises Private Ltd., Soaltee Hotel Ltd.,
Surya Enterprises Private Ltd., Panda Bhote Koshi,
Resource Development Consultants, Panda of Nepal,
RDC of Nepal, IFC, and DEG;
"'SPECIAL RESOLUTION" means a resolution as
required under Section 68 of the Company Act,
1997;
"SPECIFIED PROPORTION(S)" means, prior to
Financial Closing Date, where the whole is 100%:
in relation to Nepali Party, 10%; and in relation
to Foreign Parties, 85% to PANDA OF NEPAL and 5%
to RDC OF NEPAL; and after Financial Closing Date,
where the whole is 100%: in relation to Nepali
Party, 10% and in relation to Foreign Parties, 75%
to PANDA OF NEPAL, 5% to RDC OF NEPAL and 10% to
IFC or any of its transferees (and subsequent
transferees), unless otherwise agreed to in
writing between Nepali Party and Foreign Parties
or adjusted pursuant to this Agreement;
"UNITED STATES" or "U.S." means the United States
of America.
Words in singular include the plural. Words
signifying a gender also signify any other gender.
Persons include bodies corporate and other
association of persons. Interpretation of the
words other than words mentioned above shall be
done in accordance with the meaning ascribed to
them in the Agreement.
SECTION 2. FORMATION OF THE COMPANY
2.1 The Parties immediately upon this Agreement
becoming effective, agree to continue the
Company which has been previously
established, which will be jointly owned by
the Parties.
2.2 The name of the Company shall be BHOTE KOSHI
POWER COMPANY PRIVATE LIMITED.
2.3 The head office of the Company shall be
located at Kathmandu, Nepal; branches and
other business offices, etc., may be
established anywhere as required, except that
under no circumstances may a branch or other
business office, etc., be located in the
United States.
2.4 The Parties hereto shall consult and
cooperate with each other as to the
procedures and particulars required for the
establishment and registration of the
Company.
SECTION 3. MAIN OBJECTIVES
The main objectives of the Company shall be as
follows:
3.1 To develop, construct, own and operate the
Upper Bhote Koshi Hydroelectric Project.
3.2 To sell the generated power to the NEA, HMGN
or its representatives, or directly to
consumers both local and foreign, and others.
3.3 To build transmission lines to transmit power
from the Upper Bhote Koshi Hydroelectric
Project to the NEA power grid or other points
of supply whether through the NEA system or
otherwise.
SECTION 4. ROLES OF THE PARTIES
4.1 Subject to the Articles, PANDA OF NEPAL shall
be the lead developer of the Project and
shall be responsible to the Shareholders for
the day-to-day operation and management of
the Project and the Company.
4.2 Subject to the Articles and pursuant to an
engineering services contract, to be
negotiated and executed between RDC OF NEPAL
or its Affiliates and the Company, RDC OF
NEPAL, or one or more of its Affiliates,
shall be retained as the Project owner's
engineer.
4.3 Subject to the Articles, HIPC shall use its
best efforts to provide the Project with its
essential expertise, including, but not
limited to: (i) obtaining local and central
government permits, licenses and approvals
for the Project and (ii) serving as the local
business liaison for the Project and the
Parties.
SECTION 5. ARTICLES OF ASSOCIATION
The Company's Articles shall be as agreed to by
the Parties hereto and approved by the Office of
Company Registrar. If any discrepancy is found
between this Agreement and the Articles, the
Parties shall amend the Articles to make them
coincide with this Agreement.
SECTION 6. SHARE CAPITAL
6.1 The authorized share capital of the Company
shall be Rupees five billion four hundred
fourteen million five hundred thousand
(Rs. 5,414,500,000) divided into one class of
fifty four million one hundred forty-five
thousand (54,145,000) Shares of Rupees 100 each.
The initial issued share capital of the Company
shall be Rupees two billion (Rs. 2,000,000,000)
divided into twenty million (20,000,000) Shares
of Rupees 100 each and that shall be subscribed
for by the parties in Specified Proportions as
applicable prior to Financial Closing Date. The
initial issued capital shall be subscribed by
Foreign Parties and Nepali Party.
6.2 Subject to Section 6.6, the shareholding ratio
shall at all times be in the Specified
Proportions except that it may be changed by the
mutual written agreement of Nepali Party and
Foreign Parties subject to the approval of the
Concerned Department.
6.3 Subject to the transfer restrictions set forth
in Section 7 and subject to Section 6.6, shares
held by an Affiliate of the Nepali Party or an
Affiliate of the Foreign Parties shall be deemed
to be Shares held by that party for the purpose
of determining the Specified Proportions.
6.4 Subject to Section 6.6, the issued and
subscribed share capital of the Company shall be
held in the Specified Proportions. In addition,
it is envisaged that local and international
financial institutions may subscribe to the
share capital of the Company. Except as
expressly set forth herein or in the Articles of
the Company, any local or international
financial institutions which subscribe to the
share capital of the Company shall be required
to comply with all requirements imposed on
Shareholders by this Agreement and the Articles
of the Company.
6.5 Subject to Section 6.6, the percentage initial
subscribed share capital of the Company shall be
subscribed in the following percentages:
HIPC: 10%
PANDA OF NEPAL: 85%
RDC OF NEPAL: 5%
6.6 In the event that any Party does not contribute
its portion of the issued and subscribed share
capital of the Company as required by this
Agreement, the Articles and in accordance with
the procedures set forth in the Act, each other
Party shall have the right to fund that portion
of the share capital in proportion to each
Party's ownership interest.
6.7 The Parties shall pay in cash (which shall be
in the form of US dollars for the Foreign
Parties and shall be in US dollars or Rupees
for the Nepali Party as permitted by HMGN or
applicable law), kind or services. Cash
contributions of share capital shall be made
to the Company through proper banking
channels.
SECTION 7. TRANSFER OF SHARES
7.1 The right to Shares of the Company may only
be transferred in accordance with the
provisions of this Agreement and the
Articles.
7.2 No Shareholder shall transfer its Shares to
any person who is not already a Shareholder
without the prior written consent of all
other Shareholders, which consent may be
withheld in the sole and absolute discretion
of all other Shareholders; provided however,
that nothing in this Section 7 or elsewhere
in this Agreement shall limit the right of
IFC or any of its transferees (or subsequent
transferees) to transfer any of its Shares in
the Company.
7.3 For purposes of these Articles the term
"transfer" means, with respect to any Share
of the Company or any interest therein, the
transfer, sale, assignment or mortgage of the
Share or any interest therein, the creation
or permission to subsist of any pledge, lien,
charge or other encumbrance with respect to
the Share or any interest therein, the grant
of any option, interest or other rights with
respect to the Share or any interest therein,
or any other disposition of the Share or any
interest or rights in the Share or any part
thereof.
7.4 No transfer or purported transfer by a
Shareholder of any Share in violation of the
restriction in Section 7.2 shall be effective
to confer upon the purported transferee
rights (i) to receive dividends, (ii) to
receive a share of the net assets of the
Company upon its winding up, (iii) otherwise
to participate in distributions of the
property or assets of the Company, (iv) to
receive notice of meetings of the Company,
(v) to attend meetings of the Company, (vi)
to vote on any matter, or (vii) to receive
new Shares. Further, any person who receives
Shares in violation of the restriction in
Section 7.2 shall be obliged within 30 days
of receiving such Shares to offer to transfer
the Shares to the remaining Shareholders of
the Company in the Specified Proportions, and
the remaining Shareholders shall be entitled
to purchase the Shares offered to them by the
purported transferee at a price agreed upon
by the Parties.
7.5 Any person who receives Shares in a transfer
which complies with the requirements in this
Agreement and the Articles shall submit to
the other Parties of the Agreement and to the
office of the Company a written deed of
adherence in the form annexed at Annexure 1
of this Agreement stating that the transferee
agrees to be governed by all of the terms and
provisions of the Agreement, the Articles and
the obligations of the Party from whom it
purchased the Shares, along with a copy of
the deed to record the transfer or mortgage
of such Shares.
7.6 The notifications of intention to transfer
Shares, the terms and conditions of a
proposed transfer, and the decision by the
remaining Shareholders either to purchase
Shares or to consent to their transfer to a
person who is not a Shareholder shall be done
in writing. It is understood and agreed that
IFC and its transferees (and subsequent
transferees) are not bound by this
Section 7.6.
7.7 Any Shares transferred under this Section
shall be subject to necessary government
validation or approval in Nepal, if required.
SECTION 8. PRE-EMPTIVE RIGHTS
8.1 The Parties hereto shall have pre-emptive
rights in proportion to the number of Shares
held by each of them with respect to any new
issuance of shares of the Company. However,
upon the consent of all Shareholders, the pre-
emptive rights may be exercised in a ratio
other than the Shareholding ratio,
particularly in the case of a disinvestment
by an existing Party.
8.2 If any Party does not wish to exercise its
pre-emptive rights in whole or in part, such
Party shall notify the Shareholders of such
intention within forty-five (45) days from
the day of notice that new Shares have been
offered. In this case, the other Parties
shall have the pre-emptive right to such
unsubscribed new shares.
8.3 New Shares to which none of the Partners
hereto have subscribed shall be
preferentially allocated to persons who have
agreed to accept all of the terms and
conditions hereunder, pursuant to the
conditions set by the Shareholders.
SECTION 9. GENERAL MEETINGS OF SHAREHOLDERS
9.1 ANNUAL GENERAL MEETING
a. The Annual General Meetings of the
Company shall discuss the Company's profit
and loss account, cash flow of the Company
balance sheet and the report of the Board of
Directors and the auditors, fix the
remuneration of the auditors, declare
dividends and perform all other work of the
General Meeting.
b. The first Annual General Meeting of the
Company shall be convened within one year
from the date of the Preliminary General
Meeting and every other Annual General
Meeting shall be convened within a period of
six months from the date of the expiry of the
Fiscal Year of the Company.
c. The Annual General Meetings of the
Company shall be held in Kathmandu, Nepal or
such other place as the Shareholders may
decide except that under no circumstances
shall an Annual General Meeting be held in
the United States.
9.2. EXTRAORDINARY GENERAL MEETING
a. Both the Concerned Department and any
Shareholder or Shareholders holding at least
10% in the aggregate of all issued and
outstanding Shares may submit an application
to the registered office of the Company for
the convening of an Extraordinary General
Meeting whenever they deem necessary. The
power of the Board of Directors to call an
Extraordinary General Meeting shall be
limited to calling those Extraordinary
General Meetings which the Concerned
Department or the Shareholders have requested
pursuant to this Section.
b. An Extraordinary General Meeting shall be
held in Kathmandu, Nepal or such other place
as the Shareholders may decide except that
under no circumstances shall an Extraordinary
General Meeting be held in the United States.
9.3 NOTICE PERIOD
Every General Meeting of the Shareholders
shall be convened by issuing a notice
specifying the place, date and agenda of the
meeting in advance. In accordance with the
Act, the notice period for the Annual General
Meetings shall be thirty (30) days and shall
be thirty (30) days for all other General
Meetings or as otherwise required by the Act.
The days in the notice period may be reduced
by unanimous consent of the Shareholders. The
notice of the General Meetings shall be
served according to the Act and Articles to
such persons who have the right to receive
it.
9.4 EX-AGENDA ITEMS
At a General Meeting convened in accordance
with the Act, Shareholders may also make
decisions on matters not mentioned in the
agenda which had been sent while calling the
meeting provided that two thirds of the
Shareholders attending the meeting vote in
favor of discussing such matters.
9.5 QUORUM FOR GENERAL MEETING
a. The proceedings of any General Meeting
shall not be conducted nor a resolution be
passed unless 25% of total number of
Shareholders representing 67% of the total
value of Shares of the Company are present
therein either in person or by proxy;
provided that the presence of at least two
Shareholders shall be compulsory for holding
a General Meeting in that manner.
b. In case the meeting cannot be held for
lack of quorum, another meeting shall be
convened with an advance notice of at least
fifteen (15) days. In case another meeting
is convened in this manner if two
Shareholders of the Company, who represent
51% of the total value of Shares and who are
entitled to vote are present there in person,
there shall be no obstacle in holding the
meeting. If within half an hour of the time
appointed, such meeting still cannot be held
due to inadequate quorum, the same meeting
shall stand adjourned to the same day in the
next week at the same time and place. The
presence of 15% of the total number of
Shareholders representing 51% of the total
value of Shares at such adjourned meeting
either in person or by proxy shall constitute
a quorum. Notwithstanding anything contained
herein before, the Company shall have to
recognize such resolutions as are passed at
such a meeting and act accordingly.
c. A Special Resolution shall not be passed
unless 33% of the total number of
Shareholders representing 75% of the total
value of Shares are present either in person
or by proxy.
d. The quorum for holding an Annual General
Meeting shall be as prescribed by the
Articles. However, it will be necessary for
one representative of each Shareholder to be
present at such a meeting for the quorum to
be complete. If a meeting is adjourned as a
result of such representative not being
present, then notwithstanding the provisions
of this clause, the meeting shall be held at
the next appointed date even if such
representative is not present but provided,
the requirement of quorum as per this Section
9.5 is met.
9.6 PROXY
Shareholders desirous of nominating a
representative shall have to submit a proxy
letter as prescribed in the Articles.
9.7 ELECTION OF CHAIRPERSON
The Chairperson of the Board of Directors
shall chair the General Meeting if he is
present and in his absence, the Shareholders
present at a General Meeting shall elect,
according to their proportionate
shareholding, by majority one Shareholder
present to preside as Chairperson of the
meeting.
9.8 RESOLUTIONS
All matters to be discussed at the General
Meeting shall be presented in the form of
resolutions. Except as provided in Section
12, all other resolutions presented at the
meeting shall be deemed to have been passed
if a simple majority of Shareholders present
at the meeting, whether in person or by
proxy, vote in its favor, provided that in
the case of a Special Resolution, it shall be
deemed to have been passed if 75% of
Shareholders present at the meeting, whether
in person or by proxy, vote in its favor.
SECTION 10. PROCEEDINGS AT GENERAL MEETINGS
10.1 The Shareholders shall at all times regulate
the authorized business of the Company by
exercising control, supervision and direction
in the manner deemed appropriate by them and
by delegating such powers, from time to time,
to the Board of Directors as the Shareholders
deem appropriate. The power of managing the
Company shall be vested in the Shareholders
solely in their capacity as Shareholders.
10.2 Without prejudice to the above-mentioned
general arrangements, the Shareholders in a
General Meeting shall have the following
powers and responsibilities:
a. To arrange for payment of all expenses
incurred for the establishment and
registration of the Company, and approve
agreements concluded before the Company is
formally established.
b. To appoint and remove consultants,
advisors, technicians, assistants and other
employees.
c. To manage and supervise all functions of
the Company and make all necessary
arrangements for smoothly running the
business of the Company including taking
loans and advances.
d. To execute and sign contracts on behalf
of the Company.
e. To operate bank accounts and issue or
endorse bills of exchange, promissory notes,
etc., on behalf of the Company, and buy or
sell Government or other bonds to the extent
allowed by law, to accept, sign and deal in
bills of exchange, cheques, drafts and
Government securities and issue debentures on
behalf of the Company.
f. To arrange for all documents relating to
the financial transactions of the Company to
be duly signed by a person designated by the
Shareholders.
g. To exercise powers and fulfill the duties
prescribed by the Act, laws, this Agreement
and the Articles as prevailing from time to
time.
SECTION 11. VOTE OF SHAREHOLDERS
11.1 Subject to Section 9 and to any other special
rights or restrictions as to voting attached
to any Shares by or in accordance with this
Agreement, every Shareholder who is present
either in person or through a duly authorized
representative shall have one vote for every
Share of which he is the holder; provided
that no Shares of one party shall confer any
right to vote upon a resolution for the
removal from office of a Director appointed
by holders of Shares of the other Party.
11.2 Shareholders shall only be entitled to vote
in accordance with the number of Shares held
if all calls on subscription due on those
Shares are paid.
SECTION 12. DECISIONS
The decisions listed below shall require (i) a
95.1% vote of all outstanding Shares of the
Company prior to the commercial operation date of
the Project (such term "Commercial Operation Date"
shall have the meaning defined in Schedule A) and
(ii) 90% vote of all outstanding Shares of the
Company after the Commercial Operation Date.
12.1 Any change in the general nature of the
business of the Company or any subsidiary and
any disposal of the undertaking or assets of
the Company or of any of its subsidiaries or
any substantial part thereof other than in
the ordinary course of business.
12.2 Approval of the remuneration of the President
of the Company, if one is appointed.
12.3 Any transaction, arrangement or agreement
with or for the benefit of any Director of
the Company or his relative or any company or
firm in which he is a partner, director or
shareholder.
12.4 Acquisition or formation of any subsidiary
company and acquisition of the undertaking or
the whole or part of the assets of any other
company or business which in relation to the
Company's business is substantial.
12.5 The conduct of any business by the Company
other than as contemplated under the Articles
or other governing documents of the Company.
12.6 Incurrence of any indebtedness for borrowed
money in excess of Rs. 10,000,000 including,
without limitation, approval of all
development, construction and permanent
financing arrangements for the Project.
12.7 Increase, other than by way of bonus issue,
or reduction, or other alteration whatsoever
in the authorized or issued Share capital of
the Company or any of its subsidiaries, or
any variation of the rights attached to any
of the Shares for the time being in the
capital of the Company or any of its
subsidiaries, or the granting of any new
options to subscribe for Shares or issues of
any securities convertible into Shares of the
Company or any of its subsidiaries, or
entering into any agreement for the same.
12.8 Any issuance or sale of Shares, any voting
securities of the Company or any securities
of the Company which are exercisable, or
convertible into Shares or other voting
securities of the Company.
12.9 Any issuance of any securities of the Company
having a preference as to dividends or
distributions whether during the life of the
Company or under dissolution, liquidation or
winding-up.
12.10 Any reorganization, consolidation, merger, or
other business combination of the Company or
any subsidiary with or into any other
corporation which is not the Company or a
wholly-owned subsidiary of the Company.
12.11 The sale, lease or exchange of all or
substantially all of the assets of the
Company.
12.12 Any amendments or restatement of the
Articles, this Agreement or other governing
documents of the Company.
12.13 Any recapitalization of the Company.
12.14 Any transaction by the Company with any Party
to this Agreement, or any Affiliate of any of
them.
12.15 The mortgage or change of any part of the
Company's assets.
12.16 The acquisition or disposal by the Company of
any asset or the giving or receiving of any
service otherwise than at market value.
12.17 The admission of any new Shareholder to the
Company subject to the proviso contained in
Section 7.2 hereof.
12.18 The entering into any purchase, finance,
lease, hire purchase, other credit sale or
deferred payment terms contract or any
contract of acquisition or use of any assets
of a capital nature having a value of greater
in total than Rs. 5,000,000 in any financial
year of the Company for which purpose the
aggregate payments to be made under any lease
hire purchase or other credit sale or
deferred payment terms contract will be
deemed to be payable in the year in which the
contract is entered into.
12.19 The appointment and removal of auditors of
the Company.
12.20 The making of any loans to Directors or
Shareholders of the Company.
12.21 The payment or making of any interim or final
dividend or any other distribution in
whatever amount the Shareholders deem
appropriate.
12.22 Notwithstanding the foregoing, if prior to
the tenth anniversary of Commercial Operation
Date (as defined in Schedule A) IFC owns 5%
or more of the Shares, then except as
otherwise prohibited by applicable law, the
Company shall not take any action regarding
the following matters without the affirmative
vote of IFC;
i) any material amendment of the Articles or the
Memorandum of the Company or this Agreement, unless
expressly permitted by the Shareholders' Agreement among the
Company, the Foreign Parties and the Nepali Party,
ii) any merger, consolidation, recapitalization or other
reorganization of the Company with or into any other person,
iii) the taking of any corporate or other action by the
Company for the (A) commencement of a voluntary winding up
under any applicable bankruptcy, insolvency or similar law
now or hereafter in effect, (B) consent to the entry of any
order for relief in winding up by a court or under the
supervision of a court under any such law, (C) consent to
the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Company or of any substantial part
of the property of the Company or (D) making by the Company
of a general assignment for the benefit of creditors,
iv) any sale, lease, exchange, transfer, pledge,
contribution to a joint venture or other disposition of
assets resulting in the diminution of assets or other
properties, or the incurrence or exposure, contingently or
directly, of liability, which individually or in the
aggregate would materially impair the ability of the Company
to construct, own and operate the plant in accordance with
the scope of the Project;
v) any transaction between the Company and any Affiliate,
any officer or director of the company or any Shareholder
(or any Affiliate of any of them), except future arm's
length transactions and except the performance of the
Principal Documents (as defined in Schedule A), as
applicable, in accordance with the terms thereof,
vi) any change in the Company's line of business from the
Project,
vii) any change in the line of business of any of HIPC,
Panda of Nepal or RDC of Nepal from the holding of Shares in
the Company and matters related thereto,
viii) the entering into of any contract which
individually provides for aggregate payments in excess of
$10,000 or together with all other contracts provides for
aggregate payments in excess of $100,000 and which is not in
the ordinary course of business or is on terms less
favorable to the Company than those available in arm's
length transactions between unrelated parties, or
ix) any expansion of the Project,
x) for such time that any portion of the IFC Loans is
outstanding or during which IFC has any commitment with
respect to the IFC Loans, the appointment of a replacement
firm of auditors in the event the firm then engaged resigns
its engagement or such engagement is proposed to be
terminated by the Company,
xi) except as required by the Share Retention and Project
Funds Agreement, any (A) increase or reduction in the
authorized share capital of the Company, or (B) issuance,
sale or reduction by the Company of share capital or
securities convertible into, exchangeable for or otherwise
granting the right to acquire share capital (including
options, warrants and other rights), and
xii) any creation, grant, incurrence or sufferance of any
Liens other than as permitted by the Investment Agreement
(except that the affirmative vote of the Director appointed
by IFC to the Board of Directors or the affirmative vote of
IFC at a meeting of Shareholders shall not be required for
the creation of a Lien in connection with the refinancing of
the IFC Loans).
12.23 With respect to clause (ix) of Section 12.22
(pertaining to expansion of the Project), in
the event that IFC, in its capacity as a
Shareholder, casts a negative vote but all
other necessary votes and corporate action
have been taken to enable the Company to take
the action specified in said clause (ix) were
it not for the negative vote of IFC (in its
capacity as a Shareholder), then the Company
may give notice to IFC that, unless IFC
changes its negative vote to an affirmative
vote, the Company, if and to the extent
permitted by applicable law, will elect to
purchase IFC's Shares (the "Election
Notice"). If, within thirty (30) days after
IFC receives the Election Notice (such thirty
(30) day period referred to herein as the
"Initial Thirty Day Period"), IFC changes the
aforesaid negative vote to an affirmative
vote, then the Company shall not have the
right to purchase IFC's Shares. If, within
the Initial Thirty Day Period, IFC does not
change the aforesaid negative vote to an
affirmative vote, then the Company, if and to
the extent permitted by applicable law, shall
have the right, which must be exercised (if
at all) within sixty (60) days after the
expiration of the Initial Thirty Day Period,
to purchase all (but not less than all) of
IFC's Shares at a purchase price per share
that will provide to IFC a return on equity
taking into account dividends paid and any
prior return of capital, for IFC of twelve
percent (12%) per annum calculated for the
period from the date on which IFC acquired
its Shares through the date on which IFC's
Shares are purchased and measured in constant
U.S. Dollars by adjusting all U.S. Dollar
amounts by the rate of change during the
foregoing calculation period in the U.S.
Consumer Price Index for all urban customers.
It is expressly acknowledged and agreed that
IFC's failure to approve any expansion of the
Project in IFC's capacity as a lender shall
not trigger any rights of the Company to
purchase IFC's Shares as set forth in this
Section 12.23. In the event the Company is
not legally permitted to purchase the Shares
or if the Shareholders (other than IFC) so
decide even if the Company is legally
permitted to purchase the Shares, the right
of the Company contemplated in this
Section 12.23 to purchase all of IFC's Shares
may be exercised by the Shareholders (other
than IFC), pro rata to their then existing
holdings of Shares or in such other
proportion as they may agree.
SECTION 13. DIRECTORS
13.1 The Shareholders of the Company may delegate
such administrative and related duties as
they deem appropriate. The authority of the
Directors shall be limited to the performance
of such duties as authorized by the
Shareholders and as may be necessary to
comply with the provisions of the Act. In no
instance shall the Directors have the
authority to make unauthorized business
decisions on behalf of the Company.
13.2 The Company shall have up to seven (7)
Directors, four (4) to be appointed by PANDA
OF NEPAL and one (1) each by RDC OF NEPAL,
IFC and Nepali Party. It is agreed and
acknowledged that IFC does not have to
appoint a Director and, during any time
period in which IFC has not appointed a
Director, the total number of Directors shall
be six (6).
13.3 The initial Directors shall consist of the
nominees of the subscribers to the Memorandum
of Association.
13.4 Each Shareholder may:
a. appoint any person to serve as the
Director(s) whom it is entitled to appoint
pursuant to Section 13.2; and
b. appoint any person to serve as an
alternate Director, such alternate Director
to serve as Director in the event the
Director(s) appointed pursuant to
Section 13.4(a) becomes unavailable; and
c. remove any Director appointed by it
pursuant to Section 13.4 (a) or (b) from
office with or without cause.
13.5 The remuneration of the Directors shall be
such sum or sums as may from time to time be
determined by the Shareholders in General
Meeting.
13.6 The Directors may be paid such traveling,
hotel and other expenses as may properly be
incurred by them in the execution of their
duties, including any such expenses incurred
in connection with their attendance at
General Meetings or in connection with the
business of the Company carried out in
accordance with this Agreement.
13.7 Subject as herein otherwise provided or to
the terms of any lawful agreement, the office
of a Director shall be vacated:
a. if he is found lunatic or becomes of
unsound mind;
b. if by notice in writing given to the
Company he resigns his office;
c. if he is removed from office under
Section 13.4 (b) hereof; or
d. if he fails to meet any of the other
qualifications provided in the Act.
13.8 In the event a Director or alternate Director
vacates his office under Section 13.7, or if
a Director or alternate Director is otherwise
unable to carry out his duties as described
in this Agreement, the Shareholders shall
within a reasonable period of time appoint
another person to serve as Director or
alternate Director of the Company as provided
in 13.4 (a) and (b). A Director shall have
no authority to appoint an alternate Director
to serve in his place.
13.9 Until such time as the Shareholders appoint a
new Director as described in Section 13.8,
the Shareholders shall exercise all the
powers referred to in this Agreement as
exercisable by the Director.
SECTION 14. CHIEF EXECUTIVE OFFICER
Foreign Parties shall have the right to
nominate, by a majority vote of Shares, the
President of the Company who shall be the
Chief Executive Officer. This appointment
shall be made with the concurrence of the
Nepali Party.
SECTION 15. STATUTORY AUDITOR
It is agreed that the Company shall have joint
statutory auditors being a local auditing firm
from Nepal and an internationally recognized
auditing firm whether or not represented/located
in Nepal.
SECTION 16. LOAN/WORKING CAPITAL
The Nepali Party, PANDA OF NEPAL and RDC OF NEPAL
shall exercise their best efforts to enable the
Company to obtain the necessary Loan/Working
Capital by arranging financing to the Company or
providing guarantees to the banks/lenders of the
Company, etc.
SECTION 17. FISCAL PERIOD
The Fiscal year of the Company shall, commence on
July 16 and end on July 15 of next year, as
provided by Nepalese law, provided that the first
fiscal year shall commence on the date of
incorporation and end on July 15, of the next
year.
SECTION 18. FINANCIAL PERIOD
The Financial year of the Company shall be defined
as the period between 1 January and 31 December
for the purpose of U.S. or other foreign tax laws.
SECTION 19. ACCOUNTING PRACTICES
The Company and its subsidiaries, if any, shall:
19.1 Keep proper, usual and current accounting
records and make true and complete entries of
all their respective dealings and
transactions with respect to their respective
business and make available the accounting
records of the Company and subsidiaries (if
any) at all reasonable times during normal
business hours for inspection by the nominees
of the Shareholders.
19.2 Prepare regular financial and management
accounts and reports in a form acceptable to
each of the Shareholders. Such accounts and
management statements, cash flow projections
and progress reports will be prepared and
dispatched to the Shareholders within 4 weeks
at the end of the period of which the
accounts relate. The Company shall supply
such further information as the nominees of
the Shareholders may from time to time
reasonably require as to all matters relating
to the business or financial position of the
Company and its subsidiaries (if any) or
otherwise relating to the affairs thereof.
SECTION 20. PAYMENT AND TAX MATTERS
20.1 Unless otherwise prescribed hereunder, all of
the payments made by the Company to RDC OF
NEPAL and PANDA OF NEPAL will be made in US$
or convertible foreign currency at the bank
or other address nominated by RDC OF NEPAL or
PANDA OF NEPAL in writing and all of the
payments made by the Company to IFC shall be
made in US$ at the bank or any other address
nominated by IFC in writing. Foreign
currency payments shall also be authorized to
the extent permitted by the proposed Project
Agreement executed between the Company and
HMGN.
20.2 Any withholding tax imposed on the payments
under this Agreement to PANDA OF NEPAL, RDC
OF NEPAL and HIPC shall be withheld from the
payments by the Company and immediately paid
to the competent tax office. The Company
shall obtain from the competent taxation
authorities a certificate of payment of such
withholding tax or other appropriate evidence
in such form as shall be most useful to, and
necessary for tax credit purposes in the
United States and forward the same to PANDA
OF NEPAL or RDC OF NEPAL.
20.3 Within 90 days after the end of each Fiscal
Year, the Company shall prepare and file, or
cause to be prepared and filed, any tax
returns of the Company and shall send to each
person who was a Shareholder at any time
during such fiscal year copies of such
information as may be reasonably required for
the applicable income tax reporting purposes
by such person. The Company shall also
prepare, within the same time period, such
other returns and information as any
Shareholder may reasonably request for the
purposes of complying with requirements
imposed on the Company or the Shareholder by
U.S. or other foreign tax laws.
20.4 Without affecting in any way the
characterization of the Company as a private
limited company in Nepal and the
applicability of the provisions of the Act,
the Shareholders intend that the Company be
treated as a partnership for tax purposes in
the United States without responsibilities to
HMGN and without in any way affecting its tax
status in Nepal. Each Shareholder whose
earnings from the Company are reported to the
U.S. tax authorities will ensure that the
earnings are reported on a basis consistent
with this characterization. The Company and
its Shareholders subject to taxation in the
United States will make an election to be
treated as a partnership for federal income
purposes in the United States if such an
election becomes available. It is
acknowledged and agreed that the preceding
two sentences shall not be applicable to IFC.
If requested by any Shareholder, the Company
will make an election to adjust the basis of
its assets so that such basis will equal the
basis which each Shareholder has in its
Shares in the Company. The purpose for this
adjustment is to ensure that any investors
purchasing Shares in the Company will not be
subject to U.S. taxation on any appreciation
in the value of the Company's assets that
occurred before they purchased their Shares.
SECTION 21. NON-ASSIGNABILITY
Except in connection with the transfer of
Shares in accordance with Section 7
hereinabove, the rights and obligations of
each of the Parties under this Agreement
shall not be assignable directly or
indirectly except with the prior written
consent of the other Parties which consent
may be withheld by the other Parties in their
sole and absolute discretion.
SECTION 22. EFFECTIVE DATE
This Agreement shall come into effect on the
latest to occur of (i) the date of execution
by all the Parties, (ii) the date on which
all necessary approvals and/or licenses are
obtained from HMGN as required and (iii) the
date on which Financial Closing occurs.
SECTION 23. DURATION
This Agreement shall be valid initially for a
period of forty-one years from the Effective
Date and it may be renewed with mutual
consent and with prior approval of the HMGN,
if such approval is required.
SECTION 24. TERMINATION
This Agreement may be terminated at any time
by an instrument signed by all the Parties.
SECTION 25. MODIFICATION
This Agreement may be changed, amended or
otherwise modified only by means of written
agreement executed by the duly authorized
representatives of the Parties. Such a
modification shall be effective only upon the
approval of the relevant authority of HMGN,
Nepal, if such approval is required.
SECTION 26. GOVERNING LAW
This Agreement shall be governed by the Laws
of Kingdom of Nepal.
SECTION 27. ARBITRATION
27.1 All disputes under this Agreement shall be
resolved finally, and without appeal to any
courts, in accordance with the following
procedures.
27.2 At the Preliminary General Meeting, each
Party shall appoint a representative who
shall be principally responsible for
administering the Agreement on behalf of such
Party and representing the Party's interests
in the event of any disputes or disagreements
under this Agreement.
27.3 In the event that a Party has a dispute or
disagreement with another Party or the
Company, such Party shall provide written
notice to the Company and to the other
Parties' representatives setting forth the
alleged facts and issues regarding the
dispute (the "Dispute Notice"). The Parties'
representatives shall have thirty (30) days
from the date of receipt of the Dispute
Notice to resolve the claim.
27.4 Any dispute or disagreement between the
Parties or between a Party and the Company
relating to or in connection with this
Agreement, which is not finally settled by a
discussion between the appointed
representatives shall be submitted to
mediation at the written request of any
Party, specifying the issue or issues in the
dispute and summarizing the Party's claim
with respect thereto.
27.5 A party initiating mediation proceedings may
request that a committee be established and
such committee resolve the dispute or
disagreement. Such committee shall consist
of one representative appointed by each of
the Parties and a chairman acceptable to all
of the Parties. For purposes of such
mediation proceedings, counsel for any Party
or the Company may be present unless the
Parties agree that no counsel shall be
present at such proceedings and the use of
any submissions by any Party or by the
Company shall be restricted to such mediation
proceeding unless raised in a subsequent
proceeding by the same Party as raised it in
the mediation proceeding.
27.6 In the event that the Parties fail to form a
mediation committee, or if the mediation
committee fails to reach a decision with
respect to the dispute within thirty (30)
days of the appointment of a chairman, any
Party may refer such dispute, controversy or
claim to arbitration for settlement in
accordance with the United Nations Commission
on International Trade Law (UNCITRAL) as then
presently in force. For purposes of
application of the UNCITRAL Arbitration Rules
to this Agreement:
(a) The appointing authority shall be the
Singapore International Arbitration Centre
("SIAC").
(b) Each arbitral tribunal shall consist of
three arbitrators. Provided there are only
two parties to any dispute, each party shall
appoint one arbitrator and the third
arbitrator shall be appointed by SIAC. If
there are more than two parties to any
dispute, each of the parties thereto will
work together in good faith to appoint three
arbitrators. If the parties are unable to
agree on such arbitrators within fifteen (15)
days, three arbitrators shall be appointed by
SIAC upon the request of any party to the
dispute. No arbitrator shall be a present
employee or agent of, or consultant or
counsel to, any party or any affiliate of any
party.
(c) The place of the arbitration shall be
Singapore.
(d) The language to be used in the arbitral
proceedings shall be English.
(e) The Parties hereby consent to the
jurisdiction of the arbitration panel. The
arbitration panel acting by majority decision
shall be authorized to order legal or
equitable relief, including specific
performance or injunctive relief. The
arbitration award determined by a majority of
the arbitration panel shall be final and
binding and enforceable in any court of
competent jurisdiction.
(f) Within thirty (30) days of the
conclusion of the arbitration hearing, unless
such time is extended by mutual agreement,
the arbitrators shall notify the Parties in
writing of their decision stating separately
findings of fact and conclusions of law. The
arbitrators shall not have the power to add
to or amend this Agreement. The decision of
the majority of arbitrators shall specify how
the expenses (including reasonable attorneys'
fees) of the arbitration shall be allocated.
SECTION 28. NON-COMPETITION
The Nepali Party, PANDA OF NEPAL, and RDC OF
NEPAL (the "Private Parties") agree that they
or their Affiliates shall not, directly or
indirectly, develop electric generating
plants which are competitive with the Company
without the prior written agreement of the
other Private Parties. The Private Parties
shall promptly disclose any interest in any
power project located in Nepal to the
Shareholders of the Company.
SECTION 29. FUTURE PROJECT DEVELOPMENT
29.1 As long as any of the Private Parties are
Shareholders in the Company, such Parties
agree to develop any future power projects
located in Nepal solely in cooperation with
the other Private Parties that are
Shareholders in the Company (unless a Private
Parties elects not to pursue such future
project, in which case, the remaining other
Private Parties may locate a third party or
parties to substitute for the
nonparticipating Private Party).
29.2 RDC OF NEPAL and its Affiliates shall not be
required to comply with Section 29.1 where a
third party initially solicits RDC OF NEPAL
to act as owner's engineer or in an
Engineering, Procurement and Construction
Contract ("EPC") or consulting engineer
capacity on any project. As long as RDC OF
NEPAL is a Shareholder in the Company, RDC OF
NEPAL shall not assist any third party
private developer with respect to any power
project located in Nepal, unless such
developer holds the rights to such project
prior to any such assistance, or the other
Parties elect not to participate in such
project as provided above. In such case, the
Private Parties shall be bound by the
confidentiality requirements set forth in
Section 30 of this Agreement.
SECTION 30. CONFIDENTIALITY
Each Private Party agrees that it shall, and
shall cause each of its Affiliates, agents,
designee(s), representatives and employees to
(a) maintain in confidence any and all
proprietary and confidential information
designated in writing concerning the Project
and (b) refrain from using any such
information in competition with or otherwise
to the detriment of the Project. No Private
Party shall have any liability hereunder for
disclosure or use of any such information
which (i) is in or, through no fault of such
Private Party, its Affiliates, agents,
representatives or employees, comes into the
public domain or (ii) was acquired by such
Private Party from other sources after the
date hereof, provided such sources are not
prohibited from disclosing such information
by legal, contractual or fiduciary obligation
to the Company or (iii) such Private Party is
compelled by legal, regulatory, or
administrative process to disclose
confidential information or (iv) such Private
Party is otherwise required by applicable
law, including, but not limited to United
States security laws to disclose confidential
information. The provisions of this Section
30 shall survive any termination of this
Agreement.
SECTION 31. CORRUPT PRACTICES
Each Party agrees that it will not pay,
promise, offer or authorize payment of
anything of value (in any form) to any person
or organization either directly or indirectly
(including, as applicable under law, through
an agent, representative, sub-contractor or
other third party) to obtain or retain any
contract, permit or any other concession,
where such payment, promise, offer or
authorization is contrary to applicable law
or laws including, but not limited to, as
applicable, the Foreign Corrupt Practices Act
of the United States.
SECTION 32. FORCE MAJEURE
No Party shall be liable for any breach or
nonobservance of any term or condition of
this Agreement on account of force majeure
which shall mean fire, explosion, act of
Government and other similar circumstances
beyond the control of a Party.
SECTION 33. APPROVAL AND LICENSE
HIPC shall extend its best cooperation in
obtaining any necessary approvals or license
for the incorporation of the Company from
HMGN.
SECTION 34. LANGUAGE
This Agreement is executed in the English
Language which shall be deemed to be the
original. In case of any discrepancy between
any translation and the above version, the
English version shall be binding in all
respects.
SECTION 35. NOTICE
35.1 Any notice required or given hereunder shall
be in writing and may be given by registered
airmail, hand-delivery, or by telex,
facsimile transmission or cable at the
address for the Parties given hereinabove.
35.2 Any Party may amend its address set forth
above by written notice, made pursuant to any
of the above methods to the other Parties and
the Company.
SECTION 36. PRIOR JOINT VENTURE AGREEMENT
This Agreement supercedes, in its entirety,
the Joint Venture Agreement among the Nepali
Party, Panda of Nepal and RDC of Nepal.
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this Agreement on the ________________, 1997.
HIMAL INTERNATIONAL POWER PANDA OF NEPAL
CORP. LTD a Cayman Islands company
and a subsidiary of Panda
Energy International, Inc.,
a Texas (USA) corporation
RDC OF NEPAL, INTERNATIONAL FINANCE
a Cayman Islands company and CORPORATION
a subsidiary of Resource
Development Consultants, a
Wyoming (USA) limited
liability company
Authorized Representative
ANNEXURE - 1
(Annexure attached to the Joint Venture Agreement of Bhote
Koshi Power Company Private Limited dated _________, 1997).
By this Deed I/we of whose
registered office is at
intending to become the holder of ( ) shares of Rs.
( ) each in the Capital of Bhote Koshi Power
Company Private Limited (the "Company") hereby agree(s),
subject to my/our becoming a holder of such shares, with the
Company and each of its shareholders to observe and be bound
by all the provisions of an Agreement made on _________,
1997 between (1) Himal International Power Corporation
Private Limited, (2) Panda of Nepal, (3) RDC of Nepal and
(4) International Finance Corporation (a copy of which
Agreement is attached hereto and has been initialed by me/us
for identification) in all respects as if I/we was/were a
party to such Agreement and were named therein as a
Shareholder or a party thereto.
IN WITNESS whereof, the Parties hereto have set their hands
to these presents on the day and date mentioned herein above
earlier.