Exhibit 10.1
JIANGSU XXXXXXX-XINGRONG COPPER INDUSTRIES LIMITED
EQUITY JOINT VENTURE AGREEMENT
AMONG
XXXXXXX STREAMLINE CHINA, LLC
XXXXXXX STREAMLINE HOLDING, S.L.
JIANGSU XINGRONG HI-TECH CO., LTD.
AND
JIANGSU BAIYANG INDUSTRIES LTD.
Dated as of November 24, 2005
EQUITY JOINT VENTURE AGREEMENT
THIS EQUITY JOINT VENTURE AGREEMENT (the "Agreement"), dated as of
November 24, 2005, among Xxxxxxx Streamline China, LLC ("Xxxxxxx Delaware"), a
company duly organized and existing under the laws of the State of Delaware of
the United States having its registered address at 0000 Xxxxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, XX 00000, U.S.A., Xxxxxxx Streamline Holding, S.L., a company
duly organized and existing under the laws of Spain with its principal U.S.
office at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000, X.X.X. ("Xxxxxxx
Spain", together with Xxxxxxx Delaware, each a "Xxxxxxx Party", and
collectively, the "Xxxxxxx Parties"), Jiangsu Xingrong Hi-Tech Co., Ltd. ("XR"),
a company limited by shares duly organized and validly existing under the laws
of the PRC with its registered address at Xx. 0 Xxxxxx Xxxx, Xxx Xxxxxxxx,
Xxxxxxxxx, Xxxxxxx Xxxxxxxx, China, and Jiangsu Baiyang Industries Ltd. ("BY"),
a limited liability company duly organized and validly existing under the laws
of China with its registered address at Xx. 00 Xxxxx Xxx Xxxx Xxxx, Xxxxxx
Economic Development Zone, Jiangsu Province, China (XR and BY, each a "Chinese
Party" and collectively the "Chinese Parties"; the Chinese Parties and the
Xxxxxxx Parties, each a "Party", and collectively, the "Parties").
GENERAL STATEMENT
In accordance with the PRC Sino-Foreign Equity Joint Venture Law and
the implementing rules (with any future amendments, supplements or other
modifications, together, the "Joint Venture Law") and other applicable Chinese
laws and regulations and following friendly negotiations, the Parties hereby
agree to establish a Sino-foreign equity joint venture limited liability company
(the "Company") based on the terms and conditions set forth herein and in the
Articles of Association.
ARTICLE 1
DEFINITIONS
Except as otherwise provided under the terms of this Agreement, the
following defined terms shall have the following respective meanings:
"Affiliate", with respect to any Party, shall mean any corporate or
other entity that controls or is controlled by such Party or is under common
control with such Party by a third party. For the purposes of this definition, a
party has "control" of another party if the first party has, directly or
indirectly, at least 51% voting power at the second party's decision making
authority.
"Articles of Association" shall mean the Articles of Association of
the Company concurrently executed by the Parties hereto on the date hereof, as
the same may be amended, restated, supplemented or otherwise modified from time
to time, which will become effective only upon approval by the Examination and
Approval Authority.
"Board" shall mean the Board of Directors of the Company established
pursuant to the provisions of Article 7.
"Branch Office" means any of the Company's registered branch offices
(including liaison offices), which offices may only conduct the activities
specifically permitted by applicable Chinese laws and the Articles of
Association.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day that is a legal holiday in China.
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"Business License" shall mean the business license of the Company
issued by the relevant Registration Administration Authority after this
Agreement is approved by the Examination and Approval Authority.
"CEO" shall have the meaning set forth in Section 9.1.
"CFO" shall have the meaning set forth in Section 9.1.
"China" or the "PRC" shall mean the People's Republic of China
excluding Hong Kong SAR, Macao SAR and Taiwan solely for the purpose of this
Agreement.
"Company" means Jiangsu Xxxxxxx-Xingrong Copper Industries Limited,
a Sino-foreign equity joint venture limited liability company to be established
by the Parties pursuant to the terms of this Agreement.
"Company Auditor" shall have the meaning set forth in Section 14.7.
"Contributed Land" shall have the meaning set forth in Section
5.3(b).
"Definitive Agreements" shall mean this Agreement, the Articles of
Association, the Trademark License Letter Agreement, the Land Letter Agreement,
and the Most Favored Customer Letter Agreement.
"Director" shall have the meaning set forth in Section 7.1(a).
"Dollar", "U.S. Dollar" or "US$" shall mean the lawful currency of
the United States.
"Effectiveness Date" shall mean the date of the official certificate
issued by the Examination and Approval Authority to approve this Agreement, the
Articles of Association and the establishment of the Company, on which date this
Agreement becomes effective.
"equity interest" in the Company, with respect to any Party, shall
mean the Registered Capital contribution of such Party made to the Company and
the rights and interests in connection with such contribution; "equity share",
with respect to any Party, shall mean the percentage of such Party's Registered
Capital contribution in the Company's total amount of Registered Capital.
"Establishment Date" shall have the meaning set forth in Section
3.1.
"Event of Force Majeure" shall mean any event provided under Section
21.1.
"Examination and Approval Authority" shall mean the relevant Chinese
government authority in charge of examination and approval of this Agreement,
the Articles of Association and the establishment of the Company or any other
competent government authority duly delegated pursuant to the Joint Venture Law.
"Fair Market Value", with respect to any Party's equity interest in
the Company, shall mean the market value of such equity interest determined
pursuant to the provisions of Section 17.1.
"Joint Venture Law" shall have the meaning set forth in the General
Statement.
"Joint Venture Term" shall have the meaning set forth in Article 23.
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"Land Letter Agreement" means a letter agreement to be executed by
and between BY and the Company on or around the Establishment Date with respect
to certain protective rights to be granted by BY to the Company on certain land
the use right of which is owned by BY.
"Most Favored Customer Letter Agreement" means a letter agreement to
be executed by and between XR and the Company on or around the Establishment
Date pursuant to which XR will grant the most-favored-customer status to the
Company with respect to its future transactions with the Company.
"Registered Capital" shall have the meaning set forth in Section
5.2(a).
"Registration Administration Authority" shall mean any competent
Chinese industry and commerce administration authority that have the
registration authority over the Company pursuant to the Joint Venture Law.
"Renminbi" or "RMB" shall mean the lawful currency of China.
"Reserve Fund" shall mean a reserve fund established by the Company
pursuant to the requirements of the Joint Venture Law and the relevant
provisions of this Agreement and the Articles of Association.
"Senior Management" shall have the meaning set forth in Section 9.1.
"Simple Majority" or "Simple Majority of the Board" shall mean over
50% of the Board members present in person or by proxy at a meeting of the Board
duly convened pursuant to Article 8.
"Three Funds" shall mean the Reserve Fund, the enterprise
development fund and the employee bonus and welfare fund required to be
established by all Sino-foreign joint ventures pursuant to the Joint Venture
Law.
"Total Investment" shall have the meaning set forth in Section 5.1.
"Trademark License Letter Agreement" shall mean the trademark
license letter agreement executed by and among the Company, XR and Xxxxxxx
Industries, Inc. as of the Establishment Date, substantially in form and
substance of Appendix 3 hereto.
"Workers" shall mean all employees of the Company other than the
Senior Management.
ARTICLE 2
THE PARTIES
2.1 Parties. The Parties to this Agreement are as follows:
Xxxxxxx Delaware: Xxxxxxx Streamline China, LLC
Legal Representative: Xxxxxxx Xxxxx
Position: Chairman
Nationality: American
Facsimile: 0-000-000-0000
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Xxxxxxx Spain: Xxxxxxx Streamline Holding, S.L.
Legal Representative: Xxxxxxx Xxxxx
Position: Chairman
Nationality: American
Facsimile: 0-000-000-0000
XR: Jiangsu Xingrong Hi-Tech Co., Ltd.
Legal Representative: Wei Qi
Position: Chairman
Nationality: Chinese
Facsimile: 00-000-000-0000
BY: Jiangsu Baiyang Industries Ltd.
Legal Representative: Xxxxxxx Xxx
Position: Chairman
Nationality: Chinese
Facsimile: 00-000-000-0000
2.2 Representations and Warranties.
(a) Each Party hereby represents and warrants to each other Party
that on the date hereof and on the Effectiveness Date:
(i) it is a corporate entity duly organized and validly
existing under the laws of the jurisdiction of its incorporation and
is in compliance with all requirements of laws of the jurisdiction
of its incorporation (including, without limitation, all applicable
environmental laws) in all material aspects;
(ii) it has full corporate power and authority, government
approvals and third party consents to enter into each of the
Definitive Agreements to which it is a party and to perform its
obligations under each of the Definitive Agreements to which it is a
party;
(iii) its representatives have been fully authorized to sign
each of the Definitive Agreements to which it is a party on its
behalf;
(iv) each of the Definitive Agreements to which it is a
party shall constitute its legal, binding and enforceable
obligations once such Definitive Agreement become effective;
(v) the execution, delivery and performance of each of the
Definitive Agreements to which it is a party will not violate in any
way its business license, certificate of incorporation, corporate
constitutional documents, or any applicable laws, rules, decrees,
authorizations or approvals, or any provisions of any contractual
arrangements to which it is a party or is otherwise bound;
(vi) no litigation or proceeding of or before any arbitrator
or government authority is pending (or, to the knowledge of such
Party, threatened) against such Party that may affect in any
material aspect such Party's ability to execute, deliver and perform
its obligations under any of the Definitive Agreements to which it
is a party;
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(vii) it is the full and unrestricted legal, beneficial and
record owner or possessor of all of the assets and property rights
that it will contribute to the Company, free and clear of all
claims, liens and encumbrances of third parties, and that it has the
lawful authority to own or possess, contribute, sell, lease, operate
and otherwise provide such assets in accordance with the provisions
of this Agreement or its appendices. For the avoidance of doubt, BY
hereby represents and warrants that it (x) owns the relevant land
use rights to the Contributed Land with a total area of 138,069
square meters (equivalent to 207 mu) as described in Appendix 1
hereto, and (y) holds all applicable State-owned Land Use Right
Certificates with respect to such Contributed Land, which remain
fully valid and effective;
(viii) it has no liability, commitment, indebtedness or
obligation which could prevent, restrict or adversely affect its
ability to perform its obligations under this Agreement or its
appendices; and
(ix) it will cause its nominees to the Board of Directors to
vote in accordance with the terms of this Agreement and the Articles
of Association and will use its best efforts to carry out the intent
of this Agreement.
(b) The Parties shall each defend, hold harmless and indemnify each
other Party against any and all direct and foreseeable losses, damages, expenses
or liabilities arising from its breach or false provision of any of the
representations and warranties set forth in paragraph (a) above.
2.3 Change of Legal Representative. When there is a change of its legal
representative, each Party agrees to promptly notify each other Party of such
change and the name, position and nationality of its new legal representative.
2.4 Policy Statement. The policy of Company is to strictly abide by all
applicable laws and regulations and the Parties shall use their respective best
efforts to cause the Company to strictly comply with this policy.
ARTICLE 3
ESTABLISHMENT OF JOINT VENTURE COMPANY
3.1 Establishment of the Company. The Company shall promptly, and in no
event later than thirty (30) days after the Effectiveness Date, apply to the
appropriate Registration Administration Authority for the issuance of its
Business License. The date of issuance of the Business License shall be deemed
the official establishment date of the Company (the "Establishment Date").
3.2 Name and Address of the Company.
(a) The Company will be named "Jiangsu Xxxxxxx-Xingrong Copper
Industries Limited" in English and "********"in Chinese./1/
(b) The legal address of the Company is Xx. 00 Xxxxx Xxx Xxxx Xxxx,
Xxxxxx Economic Development Zone, Jiangsu Province, China.
(c) The Company may, upon approval by the Board, establish
subsidiaries or Branch Offices in China in accordance with applicable Chinese
laws and regulations.
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1/ Not translated herein.
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3.3 Limited Liability.
(a) The Company is a limited liability company. Each Party shall be
liable for the debts and losses of the Company only to the extent of its share
of the Registered Capital required to be contributed to the Company pursuant to
the terms of this Agreement. The Parties shall share the profits and losses of
the Company pro rata to their respective equity shares. No Party shall be
entitled to any distribution of profits by the Company so long as it is in
default in the payment of any portion of its contribution to the Registered
Capital and such default has not been cured by such Party or any other Party
pursuant to the provisions of this Agreement.
(b) The Company shall indemnify all the losses, damages and other
liabilities incurred by any innocent Party in any third party claim against such
Party as a result of any of the Company's business activities.
3.4 Protection under the PRC Law. The Company will be an enterprise
legal person organized under the PRC law. All of its legitimate business
activities and legal rights and interests shall be protected by the provisions
of the relevant PRC laws, decrees and regulations.
ARTICLE 4
PURPOSE AND SCOPE OF BUSINESS
4.1 Purpose of Business. The purposes of the Company are to design,
manufacture, market, import and export, and sell world-class copper-tube, copper
fittings and related products in the PRC, to enhance the economic cooperation
among the Parties, and to realize satisfactory financial and social returns for
the Parties.
4.2 Scope of Business. The Company will be engaged in the design and
manufacture of copper tube, copper fittings and related products, sales of its
own products, and provisions of after-sales customer support and other related
services.
ARTICLE 5
TOTAL INVESTMENT AND REGISTERED CAPITAL
5.1 Total Amount of Investment. The total amount of investment of
the Company is Ninety Million United States Dollars (US$90,000,000) (the "Total
Investment").
5.2 Registered Capital.
(a) The registered capital of the Company shall be Thirty-Eight
Million Four Hundred Fifteen Thousand Eight Hundred and Forty-Two United States
Dollars (US$38,415,842) (the "Registered Capital");
(b) The Parties' respective share of the Registered Capital shall be
as follows: Xxxxxxx Delaware to contribute in U.S. Dollar cash, in the
aggregate, US$17,479,208, representing 45.5% of the Registered Capital of the
Company; Xxxxxxx Spain to contribute in U.S. Dollar cash, in the aggregate,
US$1,920,792, representing 5% of the Registered Capital of the Company; XR to
contribute, in the aggregate, US$11,497,862 (including certain fixed assets
valued at US$2,572,000, certain patent valued at US$3,722,581, and the balance
shall be paid in RMB cash equivalent), representing 29.93% of the Registered
Capital of the Company; and BY to contribute, in the aggregate, US$7,517,980
(including the land use right to certain piece of land valued at US$2,712,673
and certain fixed assets valued at US$4,805,307), representing 19.57% of the
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Registered Capital of the Company. The Parties shall contribute their respective
share of the Registered Capital in three installments in accordance with
Sections 5.3 through 5.5 and in the amount and form as set forth in Appendix 2
hereto.
5.3 First Installment Contribution.
(a) Subject to other provisions herein and unless otherwise mutually
agreed by all Parties in writing, each Party shall make its respective first
installment contribution, in the approximate amount of 36.08% of its share of
the Registered Capital within sixty (60) days of the Establishment Date. For the
avoidance of doubt, each Party shall make its first installment contribution in
the form and in amount or value as specified in Appendix 2 hereto.
(b) Without limiting the general effect of the immediately preceding
paragraph, BY shall, after re-dividing and rejoining certain pieces of land into
one whole piece of land prior to the Effectiveness Date, contribute the relevant
land use right to such piece of land (such land, before and after the relevant
re-division or rejoining work, the "Contributed Land") with a total area of
138,069 square meters (equivalent to 207 mu) as described in more details in
Appendix 1 hereto to the Company as its first installment contribution of the
Registered Capital.
(c) Notwithstanding any other provision of this Agreement, no Party
shall have any obligation to make its first installment registered capital
contribution unless and until each of the following conditions has been
satisfied or waived in writing by all Parties:
(i) The Establishment Date has occurred;
(ii) All required third party consents for the Company's
establishment shall have been obtained;
(iii) All internal corporate approvals shall have been
obtained and all internal corporate actions shall have been taken by
all Parties for the Company's establishment;
(iv) All representations and warranties of the Parties shall
be true and correct in all material aspects; and
(v) No material adverse change has occurred from the
execution date of this Agreement through the proposed date of first
installment contribution.
(d) In addition, the Xxxxxxx Parties shall not have any obligation
to make its first installment contribution unless and until each of the
following conditions has been fulfilled to the Xxxxxxx Parties' satisfaction or
has been specifically waived by the Xxxxxxx Parties in writing, in which case
the Xxxxxxx Parties shall be obliged to make its contribution within seven (7)
days thereafter:
(i) BY has obtained, in a way satisfactory to the Xxxxxxx
Parties, the clean and lawful title to the land use right to the
Contributed Land and, in this connection, BY shall have, among
others, accomplished the re-division and rejoining process as
described in Section 5.3(b) above, re-executed a State-Owned Land
Use Right Grant Agreement with competent PRC government authority or
obtained the approval from such authority, fully paid up the land
grant premium required therefor, discharged all mortgages on the
Contributed Land, and obtained a PRC State-Owned Land Use Right
Certificate related thereto;
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(ii) BY shall have executed the Land Letter Agreement with
the Company in form and substance satisfactory to the Xxxxxxx
Parties with respect to certain priority and protective rights of
the Company to the pieces of land, with a total area of 262.9 mu,
which are currently owned by BY but will not be contributed to the
Company;
(iii) Each of the Chinese Parties has actually contributed in
full of its share of the Registered Capital to the Company for their
first installment contributions and all in-kind contributions have
been effectively transferred to the Company (in particular, the land
use rights to the Contributed Land shall have been registered under
the Company's name);
(iv) Each of the Definitive Agreements has been duly
executed by all parties thereto; and
(v) All Registered Capital contributions made by the
Chinese Parties to the Company shall be free and clear of any lien
or encumbrance.
(e) Any non-defaulting Party may freely terminate this Agreement and
shall not owe any duties or obligations to the other Parties or the Company if
the first installment registered capital contribution by any Party required
hereunder is not made by the expiry of ninety (90) days after the Establishment
Date whether because any requisite PRC government approval, registration or
license is not obtained or otherwise.
5.4 Second Installment Contribution.
(a) Subject to other provisions of this Agreement and unless
otherwise mutually agreed by all Parties in writing, each Party shall fully
contribute, in the approximate amount of 31.54% of its share of the Registered
Capital, i.e., its second installment contribution, within ninety (90) days from
the completion date of the first installment registered capital contributions by
all Parties. For the avoidance of doubt, each Party shall make its second
installment contribution in the form and in amount or value as specified in
Appendix 2 hereto.
(b) Notwithstanding any other provision of this Agreement, no Party
shall have any obligation to make its second installment registered capital
contribution unless and until each of the following conditions has been
satisfied or waived in writing by all Parties:
(i) No event of termination as described in this Agreement
shall have occurred;
(ii) The Parties shall have all made their first installment
registered capital contributions in full pursuant to this Agreement;
and
(iii) The Company shall have completed an asset purchase
transaction with respect to certain copper-tube facilities and
assets currently owned by XR on terms to be mutually agreed by XR
and the JV.
(c) In addition, the Xxxxxxx Parties shall not have any obligation
to make their second installment registered capital contribution unless and
until each of the following conditions has been fulfilled to the satisfaction of
the Xxxxxxx Parties or is specifically waived by the Xxxxxxx Parties in writing,
in which case the Xxxxxxx Parties shall be obliged to make their contribution
within seven (7) days thereafter:
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(i) XR and BY have actually contributed in full of their
registered capital to the Company for their second installment
contributions and the titles to all in-kind contributions have been
effectively transferred to the Company;
(ii) All registered capital contributions made by XR and BY
to the Company shall be free and clear of any lien or encumbrance;
and
(iii) All copper tube facilities and assets purchased by the
Company from XR shall be free and clear of any lien or encumbrance.
5.5 Third Installment Contribution.
(a) Subject to other provisions herein and unless otherwise mutually
agreed by all Parties in writing, each Party shall make its respective
installment contribution, in lump sum the balance of its respective share of the
Registered Capital within sixty (60) days from the completion date of the second
installment registered capital contributions by all Parties. For the avoidance
of doubt, each Party shall make its third installment contribution in the form
and in amount or value as specified in Appendix 2 hereto.
(b) Notwithstanding any other provision of this Agreement, no Party
shall have any obligation to make its third installment registered capital
contribution unless and until each of the following conditions has been
satisfied or waived in writing by all Parties:
(i) No event of termination as described in this Agreement
shall have occurred;
(ii) The Parties shall have all made their first and second
installment registered capital contributions in full pursuant to
this Agreement; and
(iii) The Company shall have completed an asset purchase
transaction with respect to certain copper-tube facilities and
assets currently owned by BY on terms to be mutually agreed by BY
and the JV.
(c) In addition, the Xxxxxxx Parties shall not have any obligation
to make their third installment registered capital contribution unless and until
each of the following conditions has been fulfilled to the satisfaction of the
Xxxxxxx Parties or is specifically waived by the Xxxxxxx Parties in writing, in
which case the Xxxxxxx Parties shall be obliged to make their contribution
within seven (7) days thereafter:
(i) XR and BY have actually contributed in full of their
registered capital to the Company for their third installment
contributions and the titles to all in-kind contributions have been
effectively transferred to the Company;
(ii) All registered capital contributions made by XR and BY
to the Company shall be free and clear of any lien or encumbrance;
and
(iii) All copper tube facilities and assets purchased by the
Company from BY shall be free and clear of any lien or encumbrance.
5.6 Default on Capital Contribution.
(a) Subject to the provisions of this Agreement, if any Party fails
to contribute its subscribed share of the Registered Capital of the Company in
such form and amount, on such
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conditions, and at such times as provided above,
such Party shall be liable to the Company for a penalty interest payment on its
defaulted amount at the interest rate equal to (A) 300 basis points plus (B) the
then-prevailing short term enterprise lending rate published by the People's
Bank of China, for the period from the due date of its defaulted registered
capital contribution through the date on which its default is cured by itself or
any other Party.
(b) If the default by any Party on any registered capital
contribution continues for more than thirty (30) days, then in addition to the
penalty interest payment described above, any other Party will be entitled to
cure the default and the defaulting Party's equity interest in the Company shall
be diluted accordingly. All Parties agree that in such cases they will use their
best efforts and take all necessary actions to cause the Company to apply and
obtain all required PRC government approvals and registrations in order to
effect such equity percentage adjustment. Alternatively and without limiting the
effect of Section 5.3(e), any non-defaulting Party may also elect to terminate
this Agreement and the Company by a written notice served on all other Parties
after the expiry of such 30 day grace period, without prejudice to any of such
non-defaulting Party's rights and remedies against the defaulting Party
otherwise available under this Agreement.
5.7 Increase of Registered Capital and/or Total Investment. The
Board may decide by unanimous resolutions to increase the amounts of the Total
Investment and/or the Registered Capital and the time or times at which any such
increased Registered Capital should be contributed. The Parties shall take all
necessary actions to facilitate such increase of the Registered Capital and/or
its Total Investment, including without limitation, obtaining all necessary PRC
government approvals and consents for such increase. No increase in the
Registered Capital and/or Total Investment will be implemented prior to the
approval of and registration with the competent Chinese government authorities
of the appropriate amendments to this Agreement and the Articles of Association.
5.8 Borrowing by the Company. The amount of the Total Investment
exceeding the Registered Capital may be funded with borrowings by the Company.
None of the Parties is obliged to lend funds to the Company or guarantee loans
to the Company from third parties or financial institutions unless otherwise
mutually agreed by the Parties and the Company. However, if a Party does agree
to make such loans or guarantees upon the request from the Company based on the
affirmative vote of a Simple Majority of the Board, it shall be entitled to be
paid interest and/or related fees as if it were not a party to the Company and
the transaction were a negotiated, arm's length financing from a third party.
5.9 Investment Certificates. Whenever any Party has made a required
contribution to the Company's Registered Capital or any Party's equity share in
the Company has been adjusted pursuant to this Agreement, the Company shall, on
the basis of a verification report prepared by the Company Auditor, issue to
such Party an investment certificate signed by the Chairman of the Board
evidencing the actual payment of the total amount of its registered capital
contributions, and such Party shall surrender to the Company for cancellation
any prior investment certificate issued to it by the Company.
5.10 Additional Funding, Mandatory Contribution and Preemptive
Rights.
(a) The Company will have the right to issue debt and additional
equity as necessary to meet its business needs. Unless otherwise agreed by all
Parties, all shareholder loans made to the Company shall be allocated among the
Parties, pro rata to their then-effective equity interest percentages in the
Company. Subject to the terms hereof, the Parties shall have preemptive rights,
on a pro rata basis, with respect to the issuance of any debt or equity by the
Company.
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(b) Notwithstanding the above provisions, if more equity is required
by the Company as determined by the Board pursuant to the Articles of
Association and any Party chooses not to subscribe for any such additional
equity, it is specifically agreed that such Party may be diluted by the other
Parties at, and only at, the then effective Fair Market Value (as determined
pursuant to Section 17.1 at the time of such dilution) and on other terms to be
agreed among the Parties.
ARTICLE 6
RESPONSIBILITIES OF THE PARTIES
6.1 Responsibilities of Chinese Parties. In addition to all other
obligations specifically provided under the terms of this Agreement, each
Chinese Party shall also be responsible for the following matters:
(a) Throughout the term (including the initial setup stage) of the
Company, making every commercially reasonable effort to assist the Company in
obtaining from the relevant Chinese government authorities all necessary
approvals, licenses, permits, consents and registrations required for the
establishment and normal operations of the Company;
(b) Assisting the Company in applying for all import licenses and in
handling all customs procedures necessary for importation of equipment,
materials and other supply;
(c) Assisting the Company in applying for and obtain all
preferential tax and other treatments, benefits and protections to which the
Company, the Parties and their respective personnel are currently or may in the
future become available under applicable PRC laws, regulations and policies or
pursuant to general PRC practice;
(d) Whenever requested, providing their premises for the Company's
use on arm's length terms to be agreed by the Parties; providing assistance in
obtaining necessary PRC entry visas for personnel of the Xxxxxxx Parties (and
their family members) working for the Company or otherwise engaged by the
Company; and providing local transportation to personnel dispatched by the
Xxxxxxx Parties to be engaged in technical assistance (if applicable) to the
Company;
(e) On an ongoing basis, providing preferential access by the
Company to all of their distribution networks within China for copper tube and
copper fitting products;
(f) On an ongoing basis, providing access by the Company to any
other business opportunities that may become available to or be desired by the
Company with respect to copper tube and copper fitting products and ensuring
that the Company shall have a right of first refusal to any such business
opportunity related to copper tube and copper fitting products or services that
has come to any Chinese Party or any of its subsidiaries and affiliates;
(g) Whenever any applicable new PRC law or regulation is issued or
any existing PRC law or regulation is amended, supplemented, rescinded or
otherwise modified which will adversely affect the Company or its business,
assisting the Company to make applications to or to discuss with the relevant
PRC government authorities for the purpose of obtaining any possible exemptions
thereunder;
(h) Assisting the Company in procuring equipment, materials and
office supplies within China on the terms and conditions to be mutually agreed
by the Parties and the Company;
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(i) Assisting the Company, when necessary and for the purpose of
ensuring that the various business activities of the Company comply with the
requirements of applicable PRC laws and regulations, in its liaison activities
with all relevant PRC entities including various PRC government authorities; and
(j) Carrying out all other matters entrusted to them by the Company
for which they confirm, or have confirmed, that they accept responsibility.
6.2 Responsibilities of Xxxxxxx Parties. In addition to all other
obligations specifically provided under the terms of this Agreement, the Xxxxxxx
Parties shall also be responsible for the following matters:
(a) Selecting and nominating to the Board a financial manager as the
Company's CFO;
(b) Assisting with the preparation of all application documents in
connection with the Company's establishment;
(c) Whenever requested or desired by the Board, recruiting and
dispatching qualified management, financial, and/or technical personnel to the
Company from time to time on terms to be mutually agreed by the Company and the
Xxxxxxx Parties; and
(d) Carrying out all other matters entrusted to it by the Company
for which it confirms, or has confirmed, that it accepts responsibility.
6.3 Common Non-Compete Obligation. Each Party (including, in the
case of the Chinese Parties, each of their shareholders) hereby covenants to
each other Party and the Company that it will not, through itself or an
affiliate already established or to be set up in China, compete directly with
the Company within China. Subject to the foregoing, it is clearly understood and
agreed by the Parties that there is no restriction hereunder, implied or
otherwise, that would (i) prevent the Xxxxxxx Parties or their respective
Affiliates from any other non-competing investment, joint venture, or
operational activity in China, although sales in China of products produced
outside of China are in all cases permitted and (ii) prevent the Chinese Parties
(including their shareholders) from conducting research and development on
copper-based alloys or research and development and production of non-copper
materials.
ARTICLE 7
BOARD OF DIRECTORS
7.1 Establishment.
(a) The Board shall be composed of five (5) members (each, a
"Director"), of which two (2) shall be appointed by Xxxxxxx Delaware, one (1)
shall be appointed by Xxxxxxx Spain, one (1) shall be appointed by XR and one
(1) shall be appointed by BY. Whenever the equity shares of the Parties are
changed, the Parties shall, as necessary and upon mutual agreement, also make
adjustments to the Board composition based on the changed equity share
structure.
(b) The Board shall have one chairman (the "Chairman") and one
vice-chairman (the "Vice Chairmen"). The Chairman shall be jointly appointed by
the Xxxxxxx Parties from the Directors appointed by it. The Chinese Parties
shall jointly appoint the Vice Chairman from the Directors appointed by them.
The initial Chairman of the Board will be Xxxxxxx Xxxxx and the initial Vice
Chairman of the Board will be Xxxxxx Xxxx.
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(c) Simultaneously with the execution of this Agreement, each Party
shall appoint its initial term Board members, designate the Chairman and the
Vice Chairman pursuant to clause (b) above, as the case may be, and notify the
other Parties of such appointments and designations. The Parties specifically
agree that Jiquan (Xxxxx) Gao shall be one of the initial Directors to be
appointed by the Chinese Parties.
(d) No Director may concurrently serve as a board member of any
other entity whose business directly competes with that of the Company in the
Company's permitted territory of business.
(e) The Board shall hold its first meeting as soon as practicable
after the Establishment Date.
7.2 Term of Office. The term of office for each Director (including
the Chairman and the Vice Chairman) is four years. Any Director may be
reappointed by the original appointing Party for additional four-year periods in
the same manner as set forth in Section 7.1. A Party may remove any Director
appointed by such Party upon ten (10) days prior written notice to all other
Parties. If a Director voluntarily resigns or is otherwise unable to carry out
his or her duties as a Director, the Party originally appointing such Director
shall appoint a successor to serve out such Director's term.
7.3 Chairman of the Board. The Chairman is the legal representative
of the Company. The Chairman shall exercise his/her authority within the limits
prescribed by the Board in accordance with the Articles of Association. In the
absence of the Chairman or when the Chairman is otherwise unable to execute
his/her powers and responsibilities as the Chairman of the Board, the Chairman
shall designate a representative to carry out his/her powers and
responsibilities as the Chairman in accordance with the provisions under
applicable PRC law.
7.4 Authority of Board. The Board is the highest authority of the
Company, and shall have overall and final responsibility for the management,
business operations and policies of the Company. Except as otherwise expressly
required by this Article 7, any action by the Board requires only the
affirmative vote of a Simple Majority of all Board members present in person or
by proxy at a duly convened Board meeting at which a quorum is present.
7.5 Matters Requiring Unanimous Approval. The following matters
require the unanimous affirmative vote of each Board member present in person or
by proxy at a meeting of the Board duly called and validly held pursuant to
Article 8:
(a) amendment to the Articles of Association;
(b) early termination or dissolution of the Company;
(c) increase or decrease of the Company's registered capital; and
(d) merger with or acquisition by other entity, or division, of the
Company.
7.6 Committees within the Board. The Board shall establish, among
others, an Audit Committee and a Compensation Committee. All committees shall be
composed of Directors of the Company and shall report to the Board. The Xxxxxxx
Parties shall jointly appoint the chairperson of each of the Audit Committee and
the Compensation Committee.
7.7 Personal Liability of Board Members. No Director shall assume
any personal liability for any acts performed in his capacity as a member of the
Board unless any action
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or inaction of such Board member constitutes wilful misconduct, material
negligence or violation of the Chinese criminal laws. With the exception of the
preceding sentence, the Company shall indemnify each Director against any claims
that may be brought against such member in relation to acts performed in his
capacity as a member of the Board. The Company shall further purchase and
maintain customary and adequate director and officer insurance that is
reasonably available in China.
7.8 Company Seal. The Company's seal shall be kept in the principal
office of the Company and be in custody of the Chairman or other relevant
personnel of the Company designated by the Chairman. The seal shall be used in
accordance with the relevant provisions of Chinese laws, the Articles of
Association and the relevant internal rules and guidelines of the Company.
ARTICLE 8
BOARD MEETINGS
8.1 Board Meetings. The Chairman shall call and convene a Board
meeting at least quarterly (to be gradually reduced to semi-annually after the
Company starts its business operations on a normal basis). The Chairman and the
Vice Chairman may, by agreement upon consultation between themselves, request to
call an additional Board meeting if the Chairman or the Vice Chairman believes
such an additional meeting is required. The Chairman shall decide as soon as
possible the time (in no event later than the thirtieth day after the above
agreement is reached) and place for such additional Board meetings, provided
that the Chairman is not required to call more than one such additional meeting
in any calendar quarter pursuant to this sentence.
8.2 Quorum for Board Meeting.
(a) Subject to the provisions in clause (b) below, a quorum for a
valid Board meeting exists only if at least four (4) Directors are present in
person or by proxy at the meeting.
(b) If at any duly called Board meeting the required quorum under
clause (a) above is not present, the Chairman may, within two (2) to five (5)
days of the failed first meeting, call and hold a second meeting at the same
place and with the same agenda as set for the failed meeting by delivering a
written notice to each Director at least one (1) day prior to such second
meeting notwithstanding all notice provisions under Section 8.3. For the purpose
of clause (a) above, any Director who fails to be present in person or by proxy
at such second meeting shall be deemed to have been present in such meeting
solely for the purpose of determining whether a quorum is present, and shall
further be deemed to have abstained from voting on any matters scheduled to be
discussed at such meeting. Further, any matter scheduled for discussion at such
meeting shall be deemed effectively approved upon the affirmative vote of a
Simple Majority (for matters requiring a Simple Majority vote of the Board to
approve pursuant to Section 7.4) or unanimous affirmative vote (for matters
requiring a unanimous vote of the Board to approve pursuant to Section 7.5) of
all Directors actually present in person or by proxy at such second meeting.
8.3 Meeting Notice and Agenda. The Chairman shall deliver a written
notice (including without limitation, in the form of email or fax) to each
Director at least twenty (20) days prior to each regular Board meeting and at
least fifteen (15) days prior to each other Board meeting setting forth therein
the time, place, agenda and other relevant information for the meeting. The
Directors may by unanimous written consent waive their right to the notice of
any Board meetings. Any two or more Directors may propose in writing additional
matters to be discussed at any Board
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meeting by submitting to the other Directors at least seven (7) days prior to
the date scheduled for such Board meeting, and the Chairman shall include the
additional matters in the agenda to be discussed at such Board meeting.
8.4 Place of Board Meeting. Board meetings shall be held in Jiangsu
Province of China, or, upon approval by the Board, at a place outside of Jiangsu
Province.
8.5 Written Consent of Directors in Lieu of Meetings.
(a) Unless otherwise provided in this Agreement or the Articles of
Association, any action required by Article 7 to be taken at any Board meeting
may be taken without a meeting and without prior notice given pursuant to
Section 8.3 of this Agreement upon the unanimous prior written consent of the
Directors given after disclosure to the Directors of the action or actions
proposed to be taken without a meeting.
(b) Any Director's consent to action without a Board meeting, and
any Director's consent to a specific Board action taken without a Board meeting,
shall be in the form of an individual written consent of the Director giving
such consent. Each such consent shall bear the date of signature of the Director
signing it. Each such consent will become effective simultaneously on the date
of receipt by the Company of the last individual written consent required for
the taking of actions without a meeting, or to approve a specific Board action,
as the case may be, provided that in each case there shall be no more than 20
days between the date of the first such consent and the date of the last such
consent.
(c) Any specific Board action that may be taken at a meeting may be
taken without a Board meeting pursuant to the consent provisions of Sections
8.5(a) and 8.5(b), and shall be valid if the action is consented to by the
number of Directors required for the taking of such action by the voting rules
of the Board set forth in Article 7. The Chairman shall provide prompt notice of
the taking of any such action without a meeting to all Directors who have not
consented in writing to the taking of such action.
8.6 Telephonic Meetings; Proxies.
(a) Directors may participate in a meeting of the Board by telephone
if each person participating can speak to and be heard by all other persons
participating in the meeting. Attendance at a Board meeting by telephone in
compliance with the preceding sentence is the same as in-person attendance at
such meeting.
(b) A Director may appoint any other person as his/her proxy to
attend any Board meeting, and the vote by the proxy at such Board meeting will
for all purposes be deemed a vote by the Director giving such proxy. The
instrument appointing the proxy shall be in writing and signed by the Director
giving the proxy. The proxy may be given for a specific Board meeting or for a
specific period not exceeding 12 months. A proxy will remain valid
notwithstanding the death or lack of legal capacity of the grantor or the
revocation by the grantor of the proxy if no suggestion in writing of such
death, lack of legal capacity or revocation is raised at the meeting at which
such proxy is used.
8.7 Observers' for Board Meetings. The Parties agree that the
Xxxxxxx Parties shall have the right to jointly designate up to two observers
and each Chinese Party shall have the right to designate one observer to the
Board. The observers can participate in all Board meetings and are entitled to
receive all Board meeting notices and minutes. However, no observer shall have
16
any voting right at any Board meeting and no observer may be counted as a
Director for any purpose herein unless the observer possesses a valid proxy from
a Director.
8.8 Minutes of Board Meetings. The Board shall cause all the
decisions, resolutions and discussions on any other matters at any Board meeting
(including any written consent of Directors in lieu of meetings and any
telephonic meeting) to be recorded completely and accurately in both English and
Chinese. The meeting minutes shall be distributed to all Directors as soon as
the relevant Board meeting is concluded (and in no event later than seven (7)
days of the conclusion of the relevant Board meeting). If any Director disagrees
with any content of the meeting minutes, such Board member shall raise the issue
with the Chairman immediately and the Chairman shall make any necessary
corrections to the minutes after consultation with other Directors and review of
the specific discussions at the Board meeting. All Directors shall sign and
return the undisputed meeting minutes within ten (10) days of receipt of such
minutes. The Board shall keep a record of all of its meeting minutes and
distribute a copy of each meeting minutes to all Directors once it receives the
signed original minutes from all Directors.
8.9 Costs and Expenses. The Company shall not compensate any Board
member simply because such member will need to attend any Board meeting,
provided that the Company shall reimburse the Directors for all reasonable costs
and expenses (e.g., travel expenses and hotel accommodation costs within
reasonable limit) incurred for the purpose of discharging their duties and
obligations under the terms of this Agreement.
ARTICLE 9
MANAGEMENT
9.1 Management Structure.
(a) The Company shall adopt a management system under which the
senior management team of the Company (the "Senior Management") will be
responsible for the Company's day-to-day operations according to the Company's
Articles of Associations and the Board's authorizations and delegations. The
Senior Management shall at least consist of one chief executive officer (the
"CEO") (the initial position to be held by Jiquan (Xxxxx) Gao), and one chief
financial officer (the "CFO") (a position to be jointly nominated by the Xxxxxxx
Parties and appointed by the Board). The CEO shall report and be directly
responsible to the Board. The CEO shall be responsible for the management of the
daily operations and business of the Company. The CFO shall be responsible for
the management of the financial matters of the Company generally under the
leadership of the CEO, and shall have the right to report simultaneously to the
Board on certain matters specifically set out in the Articles of Association.
The powers and responsibilities of the CEO and the CFO will be provided in more
details in the Articles of Association.
(b) Subject to the above provisions, the CEO shall be nominated and
appointed by the Board and all other Senior Management team members shall be
nominated by the CEO and appointed by the Board upon its approval. The Board
shall have the full authority to decide the structure, the term of office, the
compensation package, and all other important aspects of the Senior Management.
9.2 Business Plan. The Company will be primarily operated by the
Senior Management in accordance with an annual three (3) year rolling budget and
business plan (the "Business Plan") duly approved by the Board. Except for the
first Business Plan which shall be formulated by the Parties on or around the
Establishment Date, as soon as practicable within ninety (90) days prior to the
beginning of each fiscal year, the CEO and the CFO shall, in a manner
17
compatible with the form and timing requirements of the Parties and in both
English and Chinese, prepare and submit to the Board the updated Business Plan
for such fiscal year including a financial budget, a plan for capital
investments, asset dispositions, borrowings, forecasts of price levels, sales,
expenses, earnings and distributable profits, and all other relevant items. The
Company shall incur capital expenditures only within the capital budget approved
by the Board.
9.3 Term of Senior Management Team Members. The term of the Senior
Management team members shall be three (3) years. The Senior Management team
members may serve for additional terms if the Board so approves. All Senior
Management team members shall sign employment contracts with the Company, which
contracts shall all be subject to approval by the Board.
9.4 Other Management Personnel. The CEO may within his authority
appoint, dismiss or transfer the management personnel of the Company (other than
the CFO and other management personnel jointly nominated or appointed by the
Xxxxxxx Parties) who will be in charge of accounting, finance, personnel,
marketing and sales, network operations and customer care, and other functions
of the Company. All other management personnel shall also sign the employment
contracts with the Company.
9.5 Full-Time Job. The Senior Management and all other management
personnel of the Company shall all work for the Company on a full-time basis,
and none of them may concurrently hold any other job positions with any other
organizations or entities, unless otherwise agreed by the Parties.
9.6 Dismissal of Management Personnel. The dismissal of the Senior
Management shall be determined by the Board. Any management personnel of the
Company who has committed gross negligence, wilful misconduct or any criminal
offense shall be liable to the Company for any losses or damages so caused to
the Company.
9.7 Remunerations for Management Personnel. The remuneration for all
management personnel will be based on local annual salary, benefit and welfare
benchmarks for similar businesses in Jintan, Jiangsu Province. In the case of
any expatriate Senior Management team member jointly nominated or appointed by
the Xxxxxxx Parties pursuant to the terms of this Agreement, the Company shall
pay only such amount as is equal to such individual's annual salary, determined
in accordance with the preceding sentence.
9.8 Recruiting. Unless otherwise provided in this Agreement, all
Senior Management team members and other management personnel will be selected
by the Board from all candidates through open recruitment and examination,
provided that, when all conditions being equal, candidates recommended by the
Parties shall have the priority right of being hired by the Company.
ARTICLE 10
SITE
The legal address of the Company upon establishment shall be Xx. 00
Xxxxx Xxx Xxxx Xxxx, Xxxxxx Economic Development Zone, Jiangsu Province, China.
If after the establishment of the Company, the legal address or other place of
business of the Company has to be changed for any reason, the Company shall
obtain the right to use such legal address or place of business by means of
lease or other ways permitted by applicable PRC law.
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ARTICLE 11
PROCUREMENT OF EQUIPMENT, MATERIALS AND SERVICES
11.1 The Parties agree that the equipment, raw materials and
services necessary for the business operations of the Company will be procured
from within and outside of China. Any major procurement by the Company shall in
principle be made through a competitive bidding process.
11.2 The Parties shall cause the Company, as soon as practicable on
or after the Establishment Date, to enter into an asset purchase agreement with
each Chinese Party with respect to certain assets related to its copper tube
business.
11.3 XR shall enter into the Most Favored Customer Letter Agreement
with the Company, in form and substance satisfactory to the Xxxxxxx Parties,
granting to the Company the most-favored-customer status in connection with all
future transactions between XR and the Company.
ARTICLE 12
INTELLECTUAL PROPERTY
12.1 Trademark License Letter Agreement.
The Parties shall cause XR and Xxxxxxx Industries, Inc. to enter
into the Trademark License Letter Agreement with the Company as soon as
practicable on or after the Establishment Date substantially in form and
substance of Appendix 3 hereto.
12.2 Intellectual Property Rights of the Company.
(a) After the establishment of the Company and depending on the
Company's operational needs, each Party may from time to time license or provide
in other ways permitted by Chinese law to the Company certain intellectual
property rights (including, without limitation, trademarks, patents, proprietary
technology, trade secrets and know-how). When such license or transfer happens,
the Company shall, upon approval by the Board, enter into an agreement with the
relevant Party on license, transfer, confidentiality and other related matters.
(b) The Company may develop on its own or jointly with any Party or
any third party such intellectual property rights as patents, proprietary
technology, trade secrets, and know-how related to its scope of business. The
Company shall be the owner or joint owner, as the case may be, of such
intellectual property rights and may, upon approval by the Board, transfer or
license such intellectual property rights to any Party or any third party.
ARTICLE 13
LABOR MANAGEMENT
13.1 General Provisions. The employment, dismissal, resignation,
wages, bonus, labor insurance, welfare, rewards and penalty and other matters
concerning the employees of the Company shall be carried out pursuant to
relevant Chinese laws and regulations. Based on the operational needs of the
Company, the CEO shall propose an annual manpower plan to the Board, which plan
shall include, among others, the number of and the qualification requirements
for the new employees proposed to be added to the Company's work force, the
updated version of the
19
Company's standard employment contract for its Workers, and the salary and
welfare structure for the Workers of the Company. The CEO shall be responsible
for recruitment, dismissal and transfer of all Workers of the Company in
accordance with the annual manpower plan approved by the Board and the relevant
labor management rules of the Company. The Company shall in any event only hire
those Workers who are best qualified for their job positions, as determined
through open recruitment and examinations.
13.2 Freedom in Recruiting. The Company shall have the right to
recruit and hire employees directly from any available sources in the PRC and
elsewhere. In all cases, the Company shall be free to select all its employees
in accordance with its standards and as the Company requires. The Company shall
interview and employ only the best-qualified and skilled Workers for its
operations, as determined by the CEO and the CFO.
13.3 Employment Contract. The Company shall enter into an individual
employment contract with each employee and, whenever necessary or desired, such
employment contract shall also contain confidentiality and non-compete
provisions to the maximum extent permitted by applicable PRC law.
13.4 Labor Union. The employees of the Company shall have the right
to establish a labor union in accordance with applicable Chinese laws and
regulations. If a labor union is organized, the Company shall allocate to a
labor union fund such amount as required by the applicable Chinese laws and
regulations. All activities of the labor union shall not interfere with the
normal operations of the Company.
13.5 Transfer and Reappointment. The Chinese Parties specifically
agree that they will make every effort to ensure the smooth and timely transfer
to the Company of any and all of their existing employees who have been or will
be offered positions by the Company and are willing to join the Company. In this
case, a transferred existing employee shall become an employee of the Company
and shall not be subject to reassignment by the transferring Party unless
otherwise agreed by the Company in writing at the time of such transfer.
ARTICLE 14
ACCOUNTING, AUDIT AND OTHER FINANCIAL MATTERS
14.1 Fiscal Year. The fiscal year of the Company shall be the
calendar year, commencing from January 1 and ending as of December 31 of each
year. The first fiscal year of the Company shall commence from the Establishment
Date and end on December 31 of that calendar year; the last fiscal year of the
Company shall commence from January 1 of the year when the Company is terminated
and end as of the date on which the Company is terminated.
14.2 Accounting Policies and Principles. The Company shall establish
its accounting policies and principles pursuant to the Chinese laws and
regulations and shall keep all of its financial and accounting data, reports,
and other information in accordance with applicable Chinese law. To the extent
not inconsistent with applicable Chinese law and the generally accepted Chinese
accounting principles, the Company shall also satisfy the accounting
requirements of the Xxxxxxx Parties to the maximum extent possible.
14.3 The Company's Books and Records. All financial and accounting
records, vouchers, books and statements of the Company shall be kept in Chinese
and, to the extent from time to time reasonably requested by the Xxxxxxx
Parties, such records shall also be kept in English.
20
14.4 Account Currency. The books of account of the Company shall be
kept in RMB. At the request of the Xxxxxxx Parties, certain data shall be
additionally recorded in U.S. Dollars. Any currency conversion or transaction
necessary for the preparation of the Company's books and accounts, contributions
to the Registered Capital, distribution of profits and other purposes, shall be
made in accordance with the average of the buying and selling rates for the
particular currency quoted by the People's Bank of China on the date of such
conversion or transaction, provided that for all income statement items or
otherwise for the purpose of preparation of the income statement, the monthly
average of the buying and selling rates for the particular currency quoted by
the People's Bank of China for the period covered by such income statement shall
be applied.
14.5 Access to Financial Records. Each Party shall have the right to
inspect and make copies of the accounting records and books of account of the
Company and to visit and inspect any sites and facilities of the Company during
normal business hours on at least two (2) Business Days' prior written notice to
the Company. Each Party shall also be provided with such information as it may
reasonably request as to the status of the Company's finances and operations.
14.6 Financial Reports. All financial statements and reports shall
be prepared in both Chinese and English in accordance with applicable PRC laws
and regulations, and will contain reconciliations to the Generally Accepted
Accounting Principles of the United States. The Company shall prepare and
provide to each Party monthly operating reports as well as quarterly and annual
financial statements as below:
(a) within 90 days after the end of each fiscal year, annual
financial statements of the Company, audited as provided in Section 14.7,
which statements shall include balance sheet, profit and loss statements,
cash flow statements and cash surplus, and shall show the comparable
figures for the prior fiscal year and any other information required by
applicable law or the Board;
(b) within 45 days after the end of each fiscal quarter, unaudited
quarterly financial statements of the Company, which statements shall
include quarterly and year-to-date balance sheets, profit and loss
statements, cash flow statements and cash surplus, and shall show the
comparable figures for the prior fiscal year and any other information
required by law or the Board. Such quarterly statements shall be
accompanied by the CEO's evaluation of the progress of the Company for the
quarter then ended and the forecast for the current and the following
quarters; and
(c) within 15 days after the end of each month, monthly operating
reports setting forth the results of operations for such month and the
year to date, in such format as the Board may direct, including cumulative
deviations from current capital and operating budgets.
All such financial statements shall be prepared based on the duly established
accounting policies and principles of the Company.
14.7 Company Audit. The Company shall engage a certified public
accounting firm registered in China and approved by the Board (the "Company
Auditor") to audit the financial books and records and the annual financial
reports of the Company. The Company Auditor shall always be an experienced,
reputable, and cost-effective world class certified public accounting firm
capable of delivering accounting services that will satisfy both Chinese
domestic and international accounting standards. The Parties agree that the
initial Company Auditor shall be KPMG Huazhen and the subsequent auditors shall
be decided and appointed by the Board.
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14.8 Independent Audit.
(a) After the delivery of the first audited financial statements of
the Company covering at least a full year of operations, each Party may, at its
own expense, no more often than annually and upon ten (10) days advance notice
to the Company, conduct an independent audit of the accounts of the Company. The
independent auditor of such audit shall be entitled to inspect all relevant
financial records, files and other information of the Company, and any sites and
facilities of the Company. Such audit shall be conducted within normal business
hours of the Company and shall be carried out in a way that will reasonably
minimize the interference with the normal operations of the Company. Any dispute
arising from such independent audit may be submitted to the Board for discussion
and resolution.
(b) If any independent auditing reveals a 10% or more discrepancy
between the independent auditor's report prepared in accordance with clause (a)
above and that of the Company Auditor, the Party who carried out such
independent audit shall have the right to submit such auditing dispute to the
Board and request for discussions and resolution of such dispute within thirty
(30) days of its submission.
14.9 Three Funds. The Company shall, in accordance with the relevant
provisions of applicable Chinese law, its Articles of Association, and the
business circumstances of the Company, make appropriate allocations of its
annual after-tax profit to the Three Funds. When the aggregate amount of the
Reserve Fund has reached 50% of the Company's Registered Capital, the Company
may stop allocating additional funds to the Reserve Fund.
14.10 Cash Flow Distribution. After the required allocation to the
Three Funds as provided in Section 14.9, the Company may distribute all
Available Cash to the Parties, pro rata to their equity shares in the Company,
all distributable profits earned during each fiscal year in accordance with a
plan approved by the Board. The Board may also decide to reinvest any portion of
the distributable profits into the Company. "Available Cash" as used herein
means the Company's after-tax profit less any make-up for losses from preceding
years, any mandatory allocations to the Three Funds, and any short-term future
funding requirements as provided in the Business Plan.
14.11 Tax Assistance. The Parties agree that the Company shall, to
the extent not inconsistent with applicable Chinese laws and regulations and
upon the request of each Party, provide to such Party in a timely manner all
information necessary for such Party to prepare its tax returns.
14.12 Foreign Exchange Balance.
(a) The Company will seek to maintain a balance in its foreign
exchange receipts and expenditures through its normal business operations and
will obtain foreign currency through other methods permitted by law.
(b) All foreign exchange income of the Company shall be used and
paid in accordance with relevant Chinese foreign exchange laws and regulations.
(c) All profits and other remittances to each Xxxxxxx Party shall be
made to a designated foreign currency bank account in accordance with relevant
Chinese foreign exchange laws and regulations.
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(d) The Chinese Parties shall use their best efforts to assist the
Company in the exchange of RMB into U.S. Dollars for the purpose of distributing
profits and making other payments to the Xxxxxxx Parties.
(e) If any profits to be distributed to either of the Xxxxxxx
Parties cannot be remitted in U.S. Dollars, then such Xxxxxxx Party may require
the Company to open a separate RMB bank account for such RMB profits and hold
the same together with any interest accrued thereon solely for the benefit of
such Xxxxxxx Party until the Company converts sufficient RMB into foreign
currency for the purpose of remitting profits to such Xxxxxxx Party in U.S.
Dollars. The Xxxxxxx Parties shall bear any gain or loss resulting from the
exchange of such RMB into foreign currency.
ARTICLE 15
INSURANCE
The Board shall cause the Company to purchase adequate insurance to
cover risks customarily purchased by similar joint venture enterprises in China
and risks required by law to be covered. All insurance against loss or damage to
the property of the Company shall be in such amounts as are consistent with the
levels of insurance customarily maintained by similar joint venture enterprises
within China and shall be taken out in China on commercially reasonable terms
and conditions.
ARTICLE 16
CONFIDENTIALITY
16.1 Principle of Confidentiality. During the term of this
Agreement, any information disclosed by any Party to the Company or any other
Party which is not publicly available to the Company or such other Party, or any
information disclosed by the Company to any Party which is not publicly
available to the receiving Party and in each case clearly marked as
"confidential" by the disclosing Party, shall constitute confidential
information of the disclosing Party. Each Party receiving such information
shall, except for the purpose of performing its obligations under this
Agreement, not disclose to any third party or permit any third party to use such
confidential information unless the disclosure is required pursuant to
applicable laws and regulations. If a disclosure has to be made pursuant to any
applicable laws or regulations as provided in the preceding sentence, the Party
receiving the underlying information shall always first notify the Party
providing such information the scope of the required disclosure and the relevant
provisions of the law or regulation pursuant to which such disclosure becomes
mandatory before any such disclosure is to be made. If any confidential
information becomes publicly available for reasons not attributable to the
receiving Party, the confidentiality obligations of the receiving Party in
respect of such confidential information shall be terminated.
16.2 Restriction on Use. The Party receiving such confidential
information in accordance with Section 16.1 shall adopt necessary measures to
perform its duty of confidentiality, and not disclose such information to any
third party except to its Affiliates, its or its Affiliates' respective
directors, officers, employees, successors and assignees, external counsels,
auditors and advisors, who are under professional obligations to maintain
confidentiality or otherwise agree to be bound by the same confidentiality
obligations provided hereunder, on a need to know basis. Any breach by the
employees of the receiving Party of such confidentiality obligations shall be
deemed as breach by the receiving Party of such obligations.
23
16.3 Remedies. If any Party violates the provisions of this Article
16, it shall be liable for all direct and indirect damages and losses incurred
by the disclosing Party.
16.4 Duration. The confidentiality obligations under this Article 16
shall be effective since the date of disclosure of the relevant information to
the receiving Party and shall survive for three (3) years after the expiration
or termination of this Agreement.
ARTICLE 17
VALUATION
17.1 Determination of Fair Market Value. The "Fair Market Value" of
the Company at any given point of time shall be the value agreed by both the
Xxxxxxx Parties and the Chinese Parties at such time, provided that if the
Parties cannot agree, then it shall be determined through the following
procedures: Within thirty (30) days of the delivery of notice of any proposed
equity transfer or equity sale and purchase between the Parties, each of the
Chinese Parties (acting collectively) and the Xxxxxxx Parties (acting
collectively) appoints a qualified PRC valuation firm to estimate the value of
the Company and both sides at the same time jointly engage an internationally
renowned accounting firm or one of its PRC Affiliates as the third appraiser to
value the Company. Each of the appraisers appointed by the Parties and the third
appraiser shall prepare a valuation report for the equity interest proposed to
be transferred within twenty (20) days after the third appraiser is appointed.
The Fair Market Value of the Company for the proposed equity transfer
transaction shall be the valuation provided by the appraiser appointed by the
Xxxxxxx Parties or the Chinese Parties (as applicable) that is closer to the
valuation determined by the third appraiser.
17.2 Valuation Costs. Unless otherwise agreed by the Parties, each
side will bear all costs of the appraiser selected by it, and the third
appraiser's costs will be allocated among the Parties in accordance with their
respective equity shares in the Company at the time of such valuation.
ARTICLE 18
TRANSFER
18.1 Transfer. "Transfer" as used in this Article 18 and with
respect to any Party shall mean any transfer, assignment, sale, pledge or any
other form of disposal of all or any part of (a) such Party's rights, duties or
obligations under this Agreement, or (b) such Party's share of the Registered
Capital and interest in the Company to any of its Affiliates or a third party.
Any transfer among the Parties is hereby specifically permitted if such transfer
is consented to in writing by all Parties in advance and will be effectuated
once it is duly approved by the relevant Examination and Approval Authority.
18.2 Permitted Transfers.
(a) In addition to permitted transfers provided under Sections 5.6,
5.10 and 20.2(b), the Parties specifically agree that any transfer by a Party to
its Affiliate (including without limitation transfers between the Xxxxxxx
Parties and/or with their Affiliates) on the terms and conditions set forth in
this Section 18.2(a) shall be permitted and be exempt from the consent and the
right of first refusal requirements set forth below. Nevertheless, if either (i)
the proposed transferee Affiliate is engaged in a business directly competing
with that of the Company, or (ii) the proposed transferee Affiliate does not
have the qualifications or capabilities to perform the relevant obligations
under any of the Definitive Agreements proposed to be transferred, then any such
24
proposed transferee Affiliate shall be deemed a third party and the provisions
as applied to transfers to third parties under Section 18.3 shall automatically
apply to such transfer.
(b) If any Party or an Affiliate of such Party fails to perform its
obligations under this Agreement and such breach has materially adversely
affected the business, operations or financial conditions of the Company, taken
as a whole, the other Parties shall each send a notice of default to such Party
and shall have the right (but not the obligation), in addition to any other
rights such other Parties may have under this Agreement or pursuant to
applicable law, to elect in such notice to sell to such Party their equity
interests in the Company at 110% of the Fair Market Value of such interest, or
to buy such Party's equity interest in the Company at 90% of the Fair Market
Value of such interest in proportion to the relative equity shares between such
other Parties, in each case determined at the time of such non-defaulting
Party's election to sell or buy. The Party who defaults or whose Affiliate
defaults shall, upon the expiry of a thirty (30) day period counted from the
date on which the first notice of default from the other Party or Parties
requesting for sale or purchase of the relevant equity interests is received by
such Party, enter into the equity interest sale or purchase process with such
other Party or Parties which have elected to sell or purchase the relevant
equity interests unless the Party who defaults or whose Affiliate defaults has
earlier cured or has caused its Affiliate to cure, as the case may be, its
failure to perform and remedied the effect of such failure on the Company to the
reasonable satisfaction of all other Parties.
(c) The Parties further agree that, for so long as there has not
occurred any change of control event with any of the Chinese Parties after the
date hereof, all transfers between the two Chinese Parties shall not be subject
to any of the restrictions set forth in this Article 18.
(d) Each of the Parties will procure that each Board member
appointed by it will vote in favor of any transfer permitted by this Section
18.2 above and further agrees to seek in good faith to help the transferring
Party obtain all necessary government approvals, permits, licenses, and
registrations required to implement any such transfer.
18.3 Transfers to Third Parties.
(a) (i) When a Party (the "transferring Party") wishes to
transfer its equity interest in the Company to a third party other
than as permitted in Section 18.2, it must receive the prior written
consent (such consent not to be unreasonably withheld) of all other
Parties. The transferring Party shall give a written notice (the
"transferring notice") to all other Parties setting forth the equity
interest it wishes to transfer, the price of such equity interest,
the identity of the proposed transferee and any other relevant terms
and conditions of the proposed transaction. After the transferring
Party delivers the transferring notice to the other Parties, each
other Party must respond in writing to the transferring Party (with
a copy to the other non-transferring Party) within ten (10) days of
its receipt thereof to indicate whether it: (x) consents to the
proposed transfer (a "prior written consent"), or (y) refuses the
proposed transfer (a "refusal notice"), or (z) consents to such
transfer and in the same time elects to exercise its right of first
refusal with respect to the equity interest proposed to be
transferred by the transferring Party (a "priority purchase
notice"). Failure of any of the other Parties to respond in writing
to the transferring notice within ten (10) days of its receipt of
such notice shall be deemed a "prior written consent" to the
transferring Party's proposed transfer as set forth in its
transferring notice for all purposes herein and shall also be deemed
to constitute the waiver of such other Party's right of first
refusal with respect to such equity interest proposed to be
transferred.
25
(ii) If any of the other Parties (a "refusing Party")
delivers a refusal notice to the transferring Party, such refusal
notice shall be deemed for all purposes an irrevocable agreement of
the refusing Party (or Parties, if there are two refusing Parties)
to purchase at the Fair Market Value, all (if there is only one
refusing Party) or a pro rata share (if there are two refusing
Parties) of the equity interest proposed to be transferred by the
transferring Party. Such purchase shall be completed (and the
purchase price be paid as well) within thirty (30) days after the
transaction is approved by the Examination and Approval Authority.
(iii) If both other Parties deliver a priority purchase
notice to the transferring Party, each of such other Parties shall
have the right of first refusal to purchase, pro rata to their
relative equity interests in the Company, such equity interest
proposed to be transferred by the transferring Party on the same
terms offered by the transferring Party to the proposed transferee.
If only one of the other Parties delivers a priority purchase notice
while the other Party delivers a prior written consent or is deemed
to have delivered a prior written consent as a result of its failure
to respond to the transferring notice as required by clause (i)
above, the Party delivering the priority purchase notice shall still
be entitled to the right of first refusal to purchase all equity
interest proposed to be transferred by the transferring Party on the
same terms offered by the transferring Party to the proposed
transferee. In situations described by the preceding sentences of
this paragraph (iii), each of the other Parties who delivers the
priority purchase notice shall enter into an equity purchase
contract with the transferring Party on the terms and conditions set
forth in the transferring notice and complete the payment of the
purchase price under such equity purchase contract within thirty
(30) days after the transaction is approved by the Examination and
Approval Authority.
(b) Subject to the above provisions, when any Chinese Party (or
Xxxxxxx Party) is permitted to transfer its equity interest in the Company to a
third party, each Xxxxxxx Party (or each Chinese Party, as applicable) shall
have a tag-along right to sell its equity interest in the Company, on a pro rata
basis, to such third party on the same terms and conditions and such
transferring Chinese Party's right (or such transferring Xxxxxxx Party's right,
as applicable) to sell its equity interest in the Company shall be conditioned
on such third party purchaser's agreement to buy the equity interest of such
Xxxxxxx Party or Parties (or such Chinese Party or Parties, as the case may be)
exercising its or their tag-along rights hereunder.
(c) Each of the Parties hereby agrees that it shall cause its
respective Board members to vote in favor of each transfer permitted or required
by this Section 18.3 above. Each of the Parties further agrees to seek in good
faith to help the transferring Party obtain all the necessary government
approvals, permits, licenses, and registrations required to implement any such
transfer.
18.4 Obligations of Transferee. Any transferee pursuant to the
provisions of Section 18.3 above shall have the business qualifications
comparable to the transferring Party and shall demonstrate to the other Parties
in a reasonably satisfactory way that it has the ability to discharge or perform
the transferring Party's undischarged duties, obligations and responsibilities
under this Agreement and any of the Definitive Agreements proposed to be
transferred (if applicable). The transferee Party shall have also agreed in a
written instrument delivered to the other Parties to assume all such duties,
obligations and responsibilities.
18.5 Government Approvals for Transfer. Any sale or transfer of its
equity interest in the Company by any Party pursuant to the terms of this
Agreement shall be submitted for approval to the competent Examination and
Approval Authority and shall not take effect until all
26
required approvals are received. Upon receipt of all such required approvals,
the Company shall register the change in ownership with the appropriate
Registration Administration Authority in a timely way.
ARTICLE 19
TERMINATION AND LIQUIDATION
19.1 Early Termination. Other than as set forth below or pursuant to
the provisions of Sections 5.3(e), 5.6(b) and 21.4 or as agreed by all Parties
in writing, the Joint Venture Term may not be earlier terminated by any Party
unilaterally:
(a) any other Party or any of its Affiliates fails to perform its
obligations under this Agreement or any other applicable Definitive
Agreement and such breach of contract has caused material adverse effect
to the business, operations, or financial conditions of the Company taken
as a whole, the non-defaulting Party or Parties have given the notice of
default pursuant to Section 18.2(b) with no election of sale or purchase
of any of the relevant equity interests, and the defaulting Party has
failed to cure its default within thirty (30) days of receipt of the
notice of default (only the non-defaulting Parties may unilaterally
initiate the termination in this circumstance);
(b) a unanimous Board resolution approving the termination of the
Company;
(c) a judicial order of dissolution;
(d) sale of all or substantially all of the Company's assets or
business;
(e) the Company or any Party becomes bankrupt, or is the subject of
proceedings for liquidation or dissolution, or ceases to carry on business
or becomes unable to pay its debts as they become due (only a Party that
is not subject to any situation provided in this clause (e) may
unilaterally initiate the termination in this circumstance);
(f) the Company consistently fails to achieve certain specific
financial or operational milestones as set forth in its Business Plans or
incurrence by the Company of losses in excess of certain amount as
determined by the Board;
(g) the Company cannot carry on its normal business activities for a
period of 90 days as a result of an Event of Force Majeure;
(h) any material assets of the Company, including without
limitation, its operating capital, any of its operating licenses, permits
or government approvals, are rescinded, confiscated or expropriated by any
government authority so that the Company may not conduct its normal
business activities or will not be able to achieve its business
objectives; or
(i) after this Agreement becomes effective and during the term of
this Agreement, any Party invests in any other entity (excluding increased
investments by any Party in any of its existing investee companies prior
to the Effectiveness Date of this Agreement) that competes directly with
the businesses of the Company in the permitted business territory of the
Company (only the other Parties may unilaterally initiate the termination
under this situation).
27
Once a notice to earlier terminate the Joint Venture Term under any
of the above situations has been given, each of the Parties hereby agrees that
it will cause its respective Board members to vote in favor of the proposed
termination and to seek in good faith to obtain all necessary government
approvals, consents and registrations required to implement the termination and
liquidation of the Company.
19.2 Liability of Breaching Party. If an early termination is caused
by a breach referred to in Section 19.1(a), the defaulting Party shall be liable
for any damages that the breach may have caused to the Company and the
non-defaulting Parties. The defaulting Party shall also cause each Board member
appointed by it to vote in favor of any reasonable resolutions proposed by the
non-defaulting Parties in connection with the liquidation procedures set forth
below.
19.3 Liquidation.
(a) At the expiration of the Joint Venture Term, or in the event
that the Joint Venture Term is earlier terminated pursuant to any provisions of
this Agreement, the Company shall be dissolved and liquidated pursuant to this
Section 19.3. The Board shall appoint a liquidation committee to represent the
Company in all matters concerning the liquidation of the Company's assets in
accordance with applicable Chinese laws and regulations. The liquidation
committee shall have the rights, powers and duties conferred by this Agreement
and by applicable law. The liquidation committee shall be composed of five (5)
members. Each Party shall appoint one member to the liquidation committee. The
Board shall appoint one lawyer and one certified public accountant registered in
China.
(b) The liquidation committee shall conduct a thorough examination
of the Company's assets and liabilities and formulate a liquidation plan that
will provide for the orderly discharge of the liabilities of the Company and
reasonable maximization of the value of the assets of the Company. The
liquidation plan shall be approved by the Board and shall ensure that the
Parties have substantially equal opportunity with third parties to bid for or
purchase all or a portion of the Company's assets, provided that such
opportunity need not be afforded to any Party whose breach was the basis for
termination under Section 19.1(a) hereof. All parties participating in the
bidding for the purchase of the Company's assets shall be entities legally
qualified to be engaged in the business activities of the Company. The purchase
procedures shall further comply with all the relevant mandatory requirements
under applicable Chinese laws.
(c) All proceeds from the disposition of the assets of the Company
pursuant to this Section 19.3 shall be applied to effect payments in the
following order of priority:
(i) the liquidation costs and expenses, including
reasonable remuneration payable to members of the liquidation
committee who are not employees, officers or directors of a Party or
the Company;
(ii) salaries, insurance premiums or welfare expenses due
and payable to employees of the Company;
(iii) taxes and other government charges due and payable;
(iv) all other outstanding liabilities of the Company; and
(v) the Parties in proportion to their respective shares of
the Registered Capital.
28
(d) Each of the Chinese Parties hereby agrees that each Xxxxxxx
Party shall have priority in obtaining the foreign currency portion of the
balance to be distributed under clause (c)(v) above.
(e) On completion of all liquidation procedures, the liquidation
committee shall submit a final report approved by the Board and the Company
Auditor to the relevant Examination and Approval authority, surrender the
Company's approval certificate and Business License to the appropriate
Examination and Approval Authority and Registration Administration Authority.
(f) Without limiting the effect of Section 19.2, the Parties hereby
agree to cause the Board members appointed by each of them to act in such manner
as to give full effect to the provisions of this Section 19.3.
ARTICLE 20
INDEMNIFICATION
20.1 Indemnification Liabilities.
(a) Each Party will indemnify and hold harmless each other Party for
any and all claims, actions, liabilities, costs or expenses arising out of or in
connection with any default by such Party in the performance of its obligations
under this Agreement or due to such Party's breach of its representations and
warranties set forth in this Agreement. The obligations of the Parties under
this Article 20 shall survive any termination of this Agreement or dissolution
of the Company, but shall not be applied to limit or restrict any express
indemnification obligations or express releases from liability contained in any
other agreement among the Parties or between a Party and the Company. No Party
shall be liable to any other Party at law or in equity (whether based on
principles of contract, tort, negligence, warranty, strict liability or
otherwise) for any indirect, special, incidental or consequential damages of any
kind arising out of any violation of this Agreement.
(b) The Company shall indemnify the Parties for all losses resulting
from third party claims against the Parties arising out of the business
operation by the Company.
20.2 Limits on Liabilities. Notwithstanding the preceding paragraph
or any other provision of this Agreement, the overall liability of the Parties
to this Agreement shall further be limited as follows:
(a) The maximum liability of each Party under this Agreement,
whether arising from default by such Party under this Agreement, pursuant to an
express indemnification obligation of such Party set forth in this Agreement or
otherwise, is limited to such Party's total Registered Capital contribution
obligation under Section 5.2(b) less the amount of Registered Capital
theretofore contributed by such Party to the Company, plus all amounts required
to enable such Party to perform any purchase obligation it may have under
Section 18.2(b) of this Agreement; and
(b) In the event of a default by any Party under this Agreement, the
other Parties will be free to enforce their claims against the defaulting
Party's investment in the Company. Thus, if a Party obtains an award for damages
against another Party for breach of such other Party's obligations under this
Agreement, the first Party will be free to enforce such award against the
investment of the other Party in the Company (but may not enforce the award
against other assets of such Party), provided that any transfer of equity
interests as a result of such enforcement shall be subject to the prior approval
by the Examination and Approval Authority.
29
ARTICLE 21
FORCE MAJEURE; REGULATORY CHANGES
21.1 Definition. The term of "Events of Force Majeure" shall mean
all events (including, but not limited to, earthquakes, typhoons, flood, fire,
strikes, war, or riots), which are unforeseen, unavoidable and beyond the
control of any Party upon the signing hereof.
21.2 Exemption and Burden of Persuasion. To the extent a Party is
prevented by an Event of Force Majeure from full, timely and properly
performance of any of its obligations under this Agreement, such Party shall be
exempted from assuming default liabilities arising from improper performance of
this Agreement. However, the affected Party must, within ten (10) days from the
occurrence of such Event of Force Majeure or the recovery of communication
conditions, both by facsimile and by express mail, notify each other Party of
the details of such Event of Force Majeure and of the explicit explanation
concerning its inability to perform or inability to fully, timely and properly
perform its obligations under the Agreement due to the occurrence of such Event
of Force Majeure, and provide proof produced by a notary public office where the
Event of Force Majeure occurred evidencing the occurrence of such Event of Force
Majeure. The Party so affected by the Event of Force Majeure shall not claim to
be exempted from assuming liabilities in the event that it fails to notify and
produce proof in accordance with the preceding provisions.
21.3 Duty of Mitigation. The Party affected by the Event of Force
Majeure shall make all reasonable and possible efforts promptly to eliminate or
reduce the adverse impact of such Event of Force Majeure, and resume to perform
relevant obligations after the impact of such Event of Force Majeure is
eliminated or reduced. If the affected Party fails to perform such obligations
set forth in the preceding paragraph, it shall be held liable for such
additional damages or its failure to resumption of its obligations hereunder
after the impact of Event of Force Majeure is eliminated or reduced.
21.4 Termination. If the Event of Force Majeure continues for ninety
(90) days, and result in impossibility of performance of this Agreement, any
Party hereto may initiate the termination and liquidation procedures of the
Company in accordance with the provisions of Article 19.
21.5 Regulatory Changes. For all purposes of this Agreement, any
Regulatory Change shall be treated as if it were an Event of Force of Majeure
and the provisions under Sections 21.1 through 21.4 shall apply to the full
extent in the occurrence of any Regulatory Change. The term of "Regulatory
Change" as used herein shall mean any material amendments to any provisions of
this Agreement, the Articles of Association, the Business License, any operating
permit or any other Definitive Agreement required by any authority having
jurisdiction over the Company, or any changes in any applicable laws and
regulations (including without limitation the promulgation of new laws or
regulations, any amendment to the existing laws or regulations, and any changes
in the official interpretations of any applicable laws or regulations), which
amendments or changes have caused material adverse effect to the prospect of the
Company's operations or profitability or any Party's interests in the Company.
ARTICLE 22
ARBITRATION
22.1 Friendly Consultations. All Parties to this Agreement shall
seek a resolution through friendly consultations of any dispute, controversy or
claim arising out of, relating to, or in
30
connection with this Agreement, or the breach, termination or validity thereof,
upon the occurrence of such dispute, controversy or claim. Each Party shall
ensure that the senior representative participating on its behalf in any such
friendly consultations is not an officer or other employee of the Company, and
does not directly or indirectly report to any management personnel of the
Company. If such friendly consultations fail to resolve such dispute,
controversy or claim within forty-five (45) days of its occurrence, then any
Party may bring the matter to arbitration pursuant to this Article 22.
22.2 Arbitration. Any dispute, controversy or claim arising out of,
relating to, or in connection with this Agreement, or the breach, termination or
validity thereof, not resolved by friendly consultations shall be finally
settled by arbitration. The arbitration shall be conducted in the Hong Kong
International Arbitration Centre in Hong Kong, China, in accordance with the
then effective UNCITRAL Rules in the English language, except as such rules may
be modified by mutual agreement of the Parties.
22.3 Arbitration Award. The arbitral award shall be in writing and
shall be final and binding on all Parties to the dispute. The award may include
an award of costs, including reasonable attorney's fees.
22.4 Duty of Continued Performance. During arbitration, all the
Parties shall continue to fulfill their respective obligations under this
Agreement except for such obligations and other matters which are the subject of
the arbitration.
ARTICLE 23
JOINT VENTURE TERM
23.1 Initial Term. Unless earlier terminated pursuant to other
provisions hereof, the term of the Company (the "Joint Venture Term") shall be
thirty (30) years from the date on which the Business License is issued. This
Agreement shall take effect from the Effectiveness Date and terminate either by
the unanimous written consent of the Parties hereto or upon the completion of
the liquidation process of the Company in accordance with the relevant
provisions of Article 19 hereof.
23.2 Extended Term. If any Party intends to extend the Joint Venture
Term, such Party shall within eighteen (18) months prior to the expiration of
the initial Joint Venture Term (or any extension thereof) notify and negotiate
with the other Parties so as to determine whether the current term will be
extended. If all Parties agree to extend the term hereof, an application for
extension shall be submitted to the relevant Examination and Approval authority
not later than six (6) months prior to the expiration of such term or extension
thereof.
ARTICLE 24
APPLICABLE LAW
This Agreement shall be governed by Chinese law in all aspects and,
to the extent any matter arising out of this Agreement is not covered by Chinese
law, such matter shall be governed by common international commercial practice.
31
ARTICLE 25
MISCELLANEOUS
25.1 Waivers. Any failure or delay by one Party to exercise any
rights, powers and privileges hereunder or under any applicable Definitive
Agreement shall not be deemed as waiver of such rights, powers and privileges.
Any waiver or partial waiver of any rights, powers and privileges shall not
prevent any subsequent exercise of such rights, powers and privileges.
25.2 Amendments. This Agreement may not be amended or otherwise
modified orally. Any change of or amendment to this Agreement shall be executed
by a written instrument, signed by all Parties and approved by the Examination
and Approval Authority.
25.3 Language. This Agreement is written and executed in Chinese and
English in seven (7) counterparts in each language. The two language texts shall
have equal validity and legal effect.
25.4 Severability. Invalidity of any provision of this Agreement
shall in no way affect the validity of the remaining provisions of this
Agreement.
25.5 Entire Agreement. This Agreement together with all appendices
hereto constitute the entire agreement among the Parties and supersedes all
prior discussion, negotiation and agreements among the Parties with respect to
the subject matter hereof. In the event of any conflict between the terms and
provisions of this Agreement and the Articles of Association, the terms and
provisions of this Agreement shall prevail.
25.6 Headings. The headings and captions contained herein are for
convenience only and shall not in any way be used as interpretation, or
otherwise affect the meaning of this Agreement.
25.7 Notices. Any notice or written communication provided for in
this Agreement by any party to any other party, including but not limited to any
and all offers, writings, or notices to be given hereunder, shall be given in
both English and Chinese and sent by registered express mail, facsimile, hand
delivery against receipt, courier service or electronic means with a required
confirmation receipt to the party or the parties concerned. If sending by
registered express mail, the notice shall be deemed received on the twelfth (12)
day after such mail is dispatched; if by facsimile, the date of the confirmation
from the receiving party; if by hand delivery, the date of delivery to an
authorized personnel of the receiving party; if by courier service, the second
Business Day after sending; if by electronic means, the date of the confirmation
receipt from the receiving party. All notices and communications to a party
shall be sent to the following address for such party, until the same is changed
by notice given in writing by such party in accordance with the requirements of
this Section 25.7 to all other parties listed below:
If to Xxxxxxx Delaware:
Xxxxxxx Streamline China, LLC
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
U.S.A.
Fax Number: 0-000-000-0000
Attention: Chairman
If to Xxxxxxx Spain:
32
Xxxxxxx Streamline Holding, S.L.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
X.X.X.
Fax Number: 0-000-000-0000
Attention: Chairman
With a copy to (if to any Xxxxxxx Party):
Xxxxxxx Industries, Inc.
0000 Xxxxxxxxxx Xxxxx Xxxxx 000
Xxxxxxx, XX 00000
U.S.A.
Fax Number: 0-000-000-0000
Attention: General Counsel
Email: XxxxxxxXxxxxxx@XxxxxxxXxxxxxxxxx.xxx
If to XR:
Jiangsu Xingrong Hi-Tech Co., Ltd.
Xx. 0 Xxxxxx Xxxx, Xxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
Xxxxx
Fax Number: 00-000-000-0000
Attention: Wei Qi
If to BY:
Jiangsu Baiyang Industries Ltd.
Xx. 00 Xxxxx Xxx Xxxx Xxxx
Xxxxxx Economic Development Zone
Jiangsu Province
China
Fax Number: 00-000-000-0000
Attention: Xxxxxxx Xxx
If to the Company:
Jiangsu Xxxxxxx-Xingrong Copper Industries Limited
Xx. 00 Xxxxx Xxx Xxxx Xxxx
Xxxxxx Economic Development Zone
Jiangsu Province
China
Fax Number: 00-000-000-0000
Attention: Jiquan (Xxxxx) Gao
25.8 Appendices and Exhibits. All of the appendices and exhibits
hereto shall constitute an integral part of this Agreement.
25.9 Interpretation. In the English version of this Agreement, where
applicable, references to the singular shall include the plural and vice versa,
and the masculine gender shall include the feminine and neuter and vice versa.
If any ambiguity arises in the Chinese version of this Agreement on whether
certain term shall be singular or plural, the English version of this
33
Agreement shall be consulted.
(The rest of this page intentionally left blank; signature page to follow.)
34
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed by its duly authorized representative on the date and year first above
written.
XXXXXXX STREAMLINE CHINA, LLC
By
/s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
XXXXXXX STREAMLINE HOLDING, S.L.
By
/s/ Xxxxxxx X. Xxxxx
----------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
JIANGSU XINGRONG HI-TECH CO., LTD.
By
/s/ Wei Qi
----------------------
Name: Wei Qi
Title: Chairman
JIANGSU BAIYANG INDUSTRIES LTD.
By
/s/ Xxxxxxx Xxx
----------------------
Name: Xxxxxxx Xxx
Title: Chairman
35
Appendix 1
Description of Contributed Land
Appendix 2
Agreement on Valuation and Registered Capital Contribution
Appendix 3
Form of Trademark License Letter Agreement
