Joint Venture Agreement - Shanghai Hongxi Investment Inc., Sensor System Solutions Inc. and Hongkong Great Genesis Group Co. Ltd.
MANAGEMENT OF SINO-FOREIGN JOINT VENTURE
[CHINESE CHARACTER]
UNIVERSAL SENSOR APPLICATION INC.
CONTRACT
April 12, 2005
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Table of Contents
Chapter 1 General................................................................. 3
Chapter 2 Parties of the Joint Venture............................................ 3
Chapter 3 The Joint Venture....................................................... 4
Chapter 4 Objective of Joint Venture and Operation Scope ......................... 4
Chapter 5 Total Registered Capital, Investment Ratio, and Method of Investment 4
Chapter 6 Responsibilities of Each Party ......................................... 5
Chapter 7 Technology Transfer & Valuation of Technology .......................... 6
Chapter 8 Board of Directors ..................................................... 6
Chapter 9 Management Structure ................................................... 7
Chapter 10 Labor Management, the Composition of Labor Union........................ 8
Chapter 11 Equipment, Raw Material Purchase, Commodity Inspection ................. 8
Chapter 12 Tax Affairs, Finance and Allocation of Profit .......................... 9
Chapter 13 Term, Dissolution, Liquidation of the Joint Venture..................... 10
Chapter 14 Insurance .............................................................. 10
Chapter 15 The Responsibility for Breach of the Contract .......................... 11
Chapter 16 Force Majeure .......................................................... 11
Chapter 17 Dispute Solution ....................................................... 12
Chapter 18 Governing Laws.......................................................... 12
Chapter 19 The Effectiveness of the Contract and Others ........................... 12
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MANAGEMENT OF FOREIGN JOINT VENTURE
[CHINESE CHARACTER]
UNIVERSAL SENSOR APPLICATION INC.
CONTRACT
CHAPTER ONE GENERAL
All parties agree to sign this joint venture agreement to set up "UNIVERSAL
SENSOR APPLICATION INC."([CHINESE CHARACTER]) based on the principle of
unanimous equality and benefit. This agreement complies with "Management of
Foreign Joint Venture Enterprise Law of the People's Republic of China" and the
Chinese relevant laws and regulations.
CHAPTER TWO PARTIES OF THE JOINT VENTURE
Article 2.1 Parties to the Joint Venture
Party A: [CHINESE CHARACTER] (hereinafter "HX")
Registration: Shanghai Business Administrative Management Bureau
Address: 14 Luo Mountain Road, Suite 260, Lane1700, Pudong newly developed area,
Shanghai
Tel: 021-58547577 Fax: 021-58547577
Legal Representative: Hanlin Chen
Position: Chairman of board Nationality: PRC
Party B: SENSOR SYSTEM SOLUTIONS, INC. (hereinafter "3S")
Registration: CA, U.S.A.
Address: 45 Parker, Suite A, Irvine, CA 92618, U.S.A.
Tel: 001-949-855-6688 Fax: 001-949-855-6685
Legal Representative: Michael Young
Position: CEO Nationality: U.S.A.
Party C: Hongkong Great Genesis Group Co., LTD (hereinafter "Genesis")
Registration: Hong Kong
Address: Central, HK
Tel: 00852-25267572 Fax: 00852-25267572
Legal Representative: Hanlin Chen
Position: Chairman of board Nationality: PRC
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CHAPTER THREE THE JOINT VENTURE
Article 3.1 All parties agree to establish the joint venture of [CHINESE
CHARACTER] (hereinafter "USAI"), EngliSH name "UNIVERSAL SENSOR APPLICATION
INC.".
The join venture's legal address is: No. 1 Guanshan 1st Road, Henglong Building,
Wuhan, Hubei Province, P.R.C.
USAI can establish branch offices in any cities of China or other countries if
it's necessary. But it has to be discussed in the board, and report to related
authorized government departments.
Article 3.2 All of activities of USAI must comply with the laws and related
stipulations of People's Republic of China, and its legitimate management rights
is protected by People's Republic of China.
Article 3.3 USAI is formed by three parties according to the Chinese law, and is
registered in China as a limited liability company. All parties will share the
profit, risk and loss proportional to the percentage of its investment.
CHAPTER FOUR THE OBJECTIVE OF JOINT VENTURE AND OPERATION SCOPE
Article 4.1 USAI's business objective: To achieve satisfactory financial returns
through funding cooperation and technology transfer, and to introduce products
that are competitive worldwide in terms of quality and price through advanced
technology and scientific management. USAI's operation scope: Development,
production and sale of sensor and related electronic products. USAI's is
targeted to produce 4 million sensors annually with an annual sale of RMB300
millions.
CHAPTER FIVE TOTAL REGISTERED CAPITAL, INVESTMENT RATIO, AND METHOD OF
INVESTMENT
Article 5.1 USAI's total investment is USD 14 millions, registered capital is
USD 10 millions.
All parties agree to follow amount and ratio of investment:
Part A -- HX will invest USD 1 millions (10% of the registered capital)
Part B -- 3S will invest USD 3 millions (30% of the registered capital)
Part C -- GENESIS will invest USD 6 millions (60% of the registered
capital)
Method of Investment:
HX and GENESIS will invest in cash, land and building. Cash investment will be
done in three installments in one year. 3S will invest with technology and
technology transfer. Refer to the appended "Technology transfer contract". The
exchange rate between RMB and foreign monetary is based on the foreign exchange
rate announced by the National Foreign Exchange Administrative Bureau at the
pay-in date.
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Article 5.2 Each party should use its own cash, assets, industrial property and
technology proprietary without collateral claims to invest in this joint
venture. Any investment other than cash will need valid proof.
Article 5.3 None of the parties is allowed to, under USAI's name, take out a
loan, lease equipment or other property to be accounted for its portion of
investment. Any party cannot use USAI's assets or the other party's asset as
guarantee for its investment.
Article 5.4 The first installment of each party's investment should be
transferred to USAI's account in China within 3 months after the execution of
this agreement and obtaining the business license for USAI. Any past due payment
will incur a 1% per month interest penalty.
Article 5.5 All pay-in investment has to be verified by an accountant allowed to
practice in China. USAI will issue proof of investment based on this account's
report.
Article 5.6 If the fund is insufficient during operation, the registered capital
can be increased according to original ratio or a new ratio base on unanimous
agreement and with government approval.
Article 5.7 USAI cannot reduce its registration capital during the term of the
joint venture.
Article 5.8 One party will have the first priority to purchase the ownership of
the other party if the other party is considering selling all or part of its
ownership.
Article 5.9 None of the parties can sell its ownership to any other third party
at terms better than the terms offered to the other party. Any transfer is
invalid if this requirement is not followed.
CHAPTER SIX RESPONSIBILITIES FOR EACH PARTY
Article 6.1 Following are responsibilities of each party:
6.1.1 Part A-HX
(1) Handle the whole approval procedures about the establishment of
USAI, and deal with all of its registration procedures before
starting business.
(2) Provide land and factory building to USAI(or assist USAI to choose
factory location).
(3) Before USAI starts business, HX is responsible for dealing with the
equipment and material import examination and approval procedure and
the declaration to Chinese customs.
(4) Is responsible for the production, the management and the human
resource.
(5) Before USAI starts business, apply visa for foreign employees, and
provide them the necessary convenient condition about working,
living and traffic transportation.
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(6) Deal with everything that is included in this contract as well as
other matters that USAI authorizes.
6.2.2 3S and GENESIS
(1) Assist to handle that USAI entrusts about purchasing the equipment
and the raw material in the international market and so on the
related matters.
(2) Responsible for the product exporting of USAI, and provide the
related information in the market.
(3) Send out administrators to co-operate with HX to manage USAI
together, and also coordinate the production and management business
of USAI.
(4) Handle other matters that USAI authorizes.
CHAPTER SEVEN THE TECHNOLOGY TRANSFER & VALUATION OF TECHNOLOGY
Article 7.1 All parties must sign a technology transfer agreement in additional
as an appendix to this contract according to the industry ownership and the
valuation of technology, and report to original government department to get
approval.
Article 7.2 Any contract about technology transfer which is signed by USAI and
other companies must get approval from the government department.
CHAPTER EIGHT BOARD OF DIRECTORS
Article 8.1 The date that business license of USAI get approved is also the date
that the board is established.
Article 8.2 The board will be formed by 3 directors. HX, 3S and GENESIS each can
delegate one director. The chairman of the board will be assigned by GENESIS.
The number of directors can be increased or decreased by the approval of board
of directors.
Article 8.3 The tenure for the chairman of board is 2 years and can be
re-delegated.
Article 8.4 The board is the highest authority organization of USAI. It decides
all of significant matters of USAI.
Following events must get unanimous agreement by the directors who presents in
the board meeting:
(1) Revise bylaws of USAI;
(2) Dissolve USAI;
(3) Adjust USAI registration capital;
(4) Any party transfers its USAI share to others;
(5) Any party pawns its USAI share to the loaners.
(6) Merger or separation of USAI;
(7) Mortgage property of USAI;
.............etc.
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Article 8.5 Chairman of the board is USAI's legal representative. When chairman
of the board cannot perform his/her responsibility, he/she should authorize the
other person to act on his/her behalf.
Article 8.6 The meeting of board of directors will be held once a year at least
(annual meeting) in USAI office or other places in which the board of directors
assign, and is also convened and chaired by the chairman of the board. The
chairman should call an emergency board meeting upon request from at least one
director.
The meeting time, place, and agenda are supposed to be included in the notice of
board meeting. In the meantime, the notice in written form should be delivered
to all of directors 10 days before the board meeting held. The minutes of
meeting should be kept in file and saved.
Article 8.7 The annual board meeting and the temporary board meeting should be
hold with of the 2 (2/3 of all directors) or above directors attending the
meeting Every director owns a vote.
Article 8.8 All parties are obligated to make sure that their delegated
directors will attend the annual and the temporary board meetings. Directors who
cannot attend the board meeting should provide a proof of appointment to
authorize another person to represent him/her.
Article 8.9 If the board can't reach a decision on significant issues or events
within 3 days of the board meeting due to a director(s) of any party who can not
attend the board meeting and does not authorize another person to represent him,
the other parties can send a written notice to the absent parties' address
listed in this contract, and urge him (them) to attend the board meeting within
the time limit.
Article 8.10 The above notice is supposed to be delivered by registered mail at
least 60 days before the date when the meeting will be held. And the notice will
demand the receiving party to reply in writing within 45 days upon receiving. If
the person doesn't reply within this time limit, this party will be deemed to
forfeit its right. The person who is authorized by notified party can hold a
special board meeting. This special board meeting can pass major resolutions
with unanimous decisions from attending directors or their delegates even if the
attendance is under the legal requirement.
Article 8.11 Any director who doesn't hold a management position in USAI won't
get salary from USAI. All of expense about holding the board meeting will be
paid by USAI.
CHAPTER NINE MANAGEMENT STRUCTURE
Article 9.1 USAI is operated under General Manager system with the lead from
board of directors. And under this system, there are a few administrative
management departments that are responsible for daily administrative management.
The General Manager will be appointed by the board of directors.
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Article 9.2 General manager's responsibility is to carry out the board of
directors' resolution, organize and lead the daily management work of USAI.
Under the authorized scope from the board, General Manager represents USAI, and
is responsible for all internal operation authorized by the board, including
hiring and firing of employees.
Article 9.3 According USAI's need, the chairman of the board can adjust USAI's
management structure any time according to the resolution of the board of
directors and USAI's related regulation, and re-determines the authority and
responsibility scope of the management.
Article 9.4 General manager is not allowed to participate in the other economic
organization that competes with USAI. The board can dismiss the General manager
immediately through board resolution if behaviors of fraudulence or negligence
are found.
CHAPTER TEN THE LABOR MANAGEMENT, THE COMPOSITION OF LABOR
UNION
Article 10.1 Employee salary, reward and welfare of USAI, will be set referring
to the standard of local market. Personnel issues such as employment,
dismission, labor protection, insurance, and labor discipline will be handled
according to the Chinese relevant laws and the related regulations by the local
labor department. Regarding to the employment, salary, insurance, benefit and
travel allowance and so on of high-level management persons whom are recommended
by any party, will be discussed and decided by the board of directors.
Article 10.2 The employees of USAI are authorized to establish the basic labor
union and to engage in labor activities according to "the Labor Law of People
Republic of China" and "China Labor Union Regulations". USAI will provide the
essential activity necessities for its labor union.
CHAPTER ELEVEN EQUIPMENT, RAW MATERIAL PURCHASE, COMMODITY
INSPECTION
Article 11.1 All of the production equipments, vehicles, raw materials, fuel and
office supplies and so on which are needed by USAI should be purchased from
China if all terms are equal.
Article 11.2 The equipments which USAI purchase from overseas should be based on
the best price/performance mix, and the price must be approved by the board of
directors before purchase.
Article 11.3 All oversea equipments, raw materials and the equipments invested
by 3S, etc, must be submitted to the Chinese commodity inspection institution
for inspection according to "People's Republic of China Commodity inspection
Rule."
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CHAPTER TWELVE TAX AFFAIRS, FINANCE AND APPROPRIATION OF PROFIT
Article 12.1 USAI will follow China's relevant law and regulations to pay all
taxes.
Article 12.2 Employees of USAI will pay personal income tax according to "the
People's Republic of China Individual income Tax law". Foreign employees legal
income can be remitted to other countries after deducting the income tax.
Article 12.3 USAI will follow "People's Republic of China Chinese-foreign Joint
Venture and Enterprise Law" to draw company reserve funds, the enterprise
development funds and the welfare & reward funds. The annual percentage of draw
should be decided by the board of directors according to the enterprise
operating condition.
Article 12.4 The Joint Venture's fiscal year is from Jan. 1 to Dec. 31. All
certificates, documentaries, reports, and account book will be written in
Chinese or in both Chinese and English.
Article 12.5 The Joint Venture's finance and accounting system will follow all
related regulations in China and will file with local finance and taxation
department.
Article 12.6 The Joint Venture's all expenses must be approved by the General
Manager or by his authorized person. All business transactions should use
invoices approved by the taxation department. Any overseas including Hong Kong
and Macau, receipt must bear declaration documentary evidence from either
Chinese Port Administration or the Chinese Customs to be valid.
Article 12.7 The Joint Venture's financial audit will be done by an accountant
who is registered and allow to practice in China. The audit result will be
reported to the board of directors and General Manager.
HX agrees to let 3S and/or GENESIS to bring its own auditor if it chooses
to do so, and 3S and/or GENESIS will pay all related expense.
Article 12.8 USAI is an independent enterprise with independent accounting, and
is responsible for its own profits and losses.
Article 12.9 After paying the income tax, deducting the reserve funds, the
enterprise development funds, the welfare & reward funds, the remaining profit
will be distributed according to the investment proportion of each party. If
USAI suffers a loss, it will be shared and deducted according to the investment
proportion from the existing investment of each party.
Article 12.10 All foreign exchange matters of USAI will follow the regulations
of the "People Republic of China exchange Control".
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Article 12.11 3S and Genesis' dividends from USAI can be remitted through bank
to its authorized bank account in according with the exchange control
regulations of People Republic of China.
CHAPTER THIRTEEN TERM, DISSOLUTION, LIQUIDATION OF THE JOINT CAPITAL
Article 13.1 The term of the Joint Venture is 15 years, from the date when the
business license is received. During the term of the joint venture, none of the
parties can sign any agreements or contracts harming the joint venture with any
domestic or foreign organizations.
Article 13.2 The term can be extended with the approval of all parties before
the expiry date. If the joint venture needs to be dissolved, the board of
directors should propose a liquidation procedure, and organize a liquidation
committee to carry on the procedure. Any remaining assets will be distributed to
all parties according to the original investment proportion after all debts are
paid off.
Article 13.3 USAI can be dissolved under the following conditions.
13.3.1 At least one party does not agree to continue this
relationship when the joint venture term is expired,
13.3.2 When the enterprise suffers a serious loss, and is unable to
continue with its operation.
13.3.3 When the enterprise suffers a serious loss from natural
disaster, war and similar force majeure causes and is unable
to continue with its operation.
The board of directors should submit a company dissolution proposal to the
original approval department under conditions listed in the above article
13.3.1, 13.3.2, 13.3.3. The dissolution process will be executed according to
article 13.2 and related Chinese relevant law and regulations. This contract
will be terminated after USAI is dissolved.
CHAPTER FOURTEEN INSURANCE
Insurance policies of the joint venture company on various kinds of risks shall
be underwritten within the People's Republic of China. The board of directors
shall decide types, value and duration of insurance in accordance with the
provisions of the related insurance companies.
CHAPTER FIFTEEN THE RESPONSIBILITY FOR BREACH OF THE CONTRACT
Article 15.1 The party that fails to invest in time per Paragraph 5.4 will have
to pay a penalty. The penalty will be 1% of its total investment amount per
month from the first
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date that it fails to meet his investment schedule. Not only the party that
breach the contract should pay for this penalty, but also the other side that
can request to terminate this contract and ask for damage compensation.
Article 15.2 It is called "breach of the contract" if one party fails to pay-in
its investment in the time limit. Other parties should notify and urge the
breaching party to pay-in its investment within one month. The breaching party
will be deemed as giving up all of its rights and withdrawing from USAI
automatically if its investment is unpaid within the month. After the month,
other parties should apply to the original approval government department to
dissolve USAI, or to get approval to find another party to assume the rights and
responsibilities that originally belong to the breaching party. Other parties
are entitled to damage compensation from the breaching party. The damage will be
shared by all parties according to the actual situation, if the breach is caused
by all parties.
CHAPTER SIXTEEN FORCE MAJEURE
The party that suffers from earthquake, typhoon, flood, fire, war or other
accidents that are unpredictable force majeure and cannot fulfill the contract
should promptly notify the other parties. It will also provide all details
within 15 days along with a certificate from an authorized government agency to
explain why it can't execute the contract. All parties will negotiate and decide
to terminate this contract, remove some of the obligations, or postpone the due
dates.
CHAPTER SEVENTEEN DISPUTE SOLUTION
All parties should resolve any dispute occurred during the term of the joint
venture based on good will. Any dispute cannot be resolved among the parties can
be submitted to and solved by China International Economic Arbitration Committee
or the local branch council in which USAI is located. This arbitration will be
final and all parties should abide by it. The party that loses in the
arbitration should be responsible for the expenses of arbitration. All parties
should continue to execute joint venture contract and all related agreements
within the arbitration period.
CHAPTER EIGHTEEN GOVERNING LAWS
The signature, effectiveness, interpretation, modification, and dispute
settlement of the contract will be governed by the laws of People Republic of
China.
CHAPTER NINETEEN EFFECTIVENESS OF THE CONTRACT AND OTHERS
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Article 19.1: This contract will be in effect after the authorized
representatives from all parties sign this document and getting the approval
from the government department. Same requirements apply when the contract is
modified.
Article 19.2: This contract will become a legal document after every party has
signed it and approved by the government department. All parties must abide by
it strictly; none of the parties can terminate it arbitrarily. Any proposal to
terminate, transfer shares or change terms of the contract should be brought up
3 months beforehand, and after negotiation by all parties the revised contract
should be submitted to the original approval government department to get
approval. The existing parties will have preemption to purchase shares from the
other party. The party that proposes to terminate this contract will be
responsible for all the financial loss from contract termination.
Article 19.3: Any other issues about the contract after being negotiated by all
parties can be modified or supplemented, and submitted to the original approval
government department to get approval. Any revisions or added provisions are
legally binding and should be treated as amendments to this contract.
Article 19.4: Any notification to other parties can be sent through telegram,
email or fax. However, notices should be sent in registered letter if they are
related to the rights or responsibilities of any party. The addresses listed in
this contract are the mailing addresses.
Article 19.5: This agreement will be interpreted based on its Chinese version.
The original document has 4 copies. All parties hold one respectively, and
another one is preserved by USAI. There are still some duplication copies for
being filed to the related government departments.
[CHINESE CHARACTER]
(Signature, stamp)
Date:
Sensor System Solutions, Inc.
(Signature)
Date:
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China Automotive Systems, Inc.
(Signature)
Date:
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