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中外合资合同

典文为某中外合资企业翻译的《合资经营合同》(中译英,中文原文略)。

 

XXX Co., Ltd.

 

JOINT VENTURE CONTRACT

 

February of 2013

 

Contents

 

Chapter 1 General Principles

Chapter 2 Parties to the Joint Venture

Chapter 3 Establishment of the Joint Venture

Chapter 4 Business Purpose and Scope

Chapter 5 Total Amount of Investment and Registered Capital

Chapter 6 Operation and Management Organizations

Chapter 7 Labor

Chapter 8 Taxation, Finance and Audit

Chapter 9 Allocation of Profits and Assumption of Risks

Chapter 10 Foreign Exchange

Chapter 11 Term of the Joint Venture

Chapter 12 Disposal of Properties upon Expiration of the Term of Joint Venture

Chapter 13 Insurance

Chapter 14 Entrustment for Application

Chapter 15 Modification, Change and Termination

Chapter 16 Liabilities for Breach of Contract

Chapter 17 Force Majeure

Chapter 18 Applicable Law

Chapter 19 Dispute Resolution

Chapter 20 Effectiveness and Miscellaneous

 

Chapter 1 General Provisions

The American Head Office of AAA COMPANY and BBB Co., Ltd., through friendly consultation, agree to establish a joint venture company to do business in China, and AAA COMPANY HONG KONG LIMITED is appointed by and on behalf of the American Head Office of AAA COMPANY to make investment into such joint venture company. In accordance with the Law of the P.R.C. on Chinese-Foreign Equity Joint Ventures and other relevant laws and regulations of China and based on the principles of equality and mutual benefits, both Parties, through friendly consultation, agree to enter into this Contract for joint investment and establishment of a Chinese-Foreign equity joint venture in Shanghai.

 

Chapter 2 Parties to the Joint Venture

Clause 1  Parties to the Joint Venture

Party A: AAA COMPANY HONG KONG LIMITED

Registered address: 15/F, Overseas Trust Bank Building, 160 Gloucester Road, Hong Kong

Legal representative: XXX

Party B: BBB Co., Ltd.

Registered address: No. 165 Zhurong Road, Nanyue District, Hunan Province

Legal representative: XXX

 

Chapter 3 Establishment of the Joint Venture

Clause 2 In accordance with he Law of the P.R.C. on Chinese-Foreign Equity Joint Ventures and other relevant laws and regulations of China, the Parties agree to establish AAA COMPANY CHINA Co., Ltd. in China (the name shall be subject to the final approval by the competent administration for industry and commerce, hereinafter referred to as the joint venture company, abbreviated for “JVC”). 

 

Clause 3 Name of the JVC: AAA COMPANY CHINA Co., Ltd.

        Registered address:  

        Legal representative: XXX

        Nationality: America

 

Clause 4 All operating activities of the JVC must comply with the applicable laws, regulations and rules of China, and its legitimate rights and interests shall be under the protection of the applicable laws, regulations and rules of China. The JVC shall be a limited liability company and have the independent legal personality. 

 

Clause 5 The JVC will establish independent management and finance system, carry on its business independently, conduct independent financial checking, and solely bear its losses and enjoy the profits.

 

Chapter 4 Business Purpose and Scope

Clause 6 The business purpose of the JVC: based on the spirits of good faith, devotion and creativity, and on the grounds of good investment environment and preferential policy in Shanghai, provide professional services for the development of culture and tourism industry of China and obtain maximum economic and social efficiency.

 

Clause 7 Business scope of the JVC: investment consulting for recreation and entertainment industry; consulting for reformation and upgrade of entertainment experience projects; engineering and planning on tourist sites and tourist real estate; management and operation of tourist sites; consulting for management of museum and operation and management of museum.

 

Chapter 5 Total Amount of Investment and Registered Capital

Clause 8 The registered capital shall be US$ 110,000, which shall be contributed respectively by both Parties in their proportion. 

 

Clause 10 The method and amount of capital contributions shall be as below:

        The registered capital of the JVC shall be US$ 110,000. Party A shall contribute US$ 56,100 in spot exchange, accounting for 51% of the registered capital; Party B shall contribute its capital in RMB equal to US$ 53,900, accounting for 49% of the registered capital.

 

Clause 11 The registered capital shall be paid off in a lump sum within 90 days after the business license is issued.

 

Clause 12 After the registered capital is paid off by each party in proportion to their capital contributions, the JVC shall engage an accounting firm registered in China to verify the capital contributions. According to the report on verification of capital contributions, the chairman shall issue a certificate of capital contribution to each party within 7 days. The said certificate of capital contribution shall mainly specify the name and date of establishment of the JVC, the names, amounts of capital contributions and proportion of capital contributions of its investors, and the date of issuance of such certificate. Any change in the registered capital of the JVC shall be subject to unanimous approval at the shareholders’ meeting, and submitted to the original examining and approving authority for approval, and thereafter, the procedures for change in registration shall be handled with the original authority for administration of registration.

 

Clause 13 If either party to the joint venture is to change the equity structure, it shall be subject to unanimous approval by the board of directors, and submitted to the original examining and approving authority for approval, and thereafter, the procedures for change in registration shall be handled with the original authority for administration of registration.

 

Chapter 6 Operation and Management Organizations

Clause 14 The board of directors shall be composed of five members. The members of the board of directors shall be appointed by the investors, among whom, three shall be appointed by Party A, and two shall be appointed by Party B. The tenure of office of each director shall be three years, and may be renewed. In case of retirement, death or dismissal of any director, the investor may appoint replacement director. At the boarding meeting, the chairman shall have no casting vote. Instead of the board of supervisors, the JVC shall have two supervisors, among whom, each party shall appoint one respectively. The tenure of office of each supervisor shall be three years. The tenure of office of each supervisor may be renewed upon re-appointment. The investors may appoint replacement supervisors. Any director or senior manager shall not hold the position of supervisor concurrently.

 

Clause 15 Routine operation and management organizations

The JVC shall have routine operation and management organization in charge of the routine work of operation and management of the JVC.  The operation and management organization shall have one general manager who shall be engaged by the board of directors, directly responsible to the board of directors, execute various decisions of the board of directors, and organize and lead the routine operation and management of the JVC. The tenure of office of the general manager shall be one year, and may be renewed upon re-engagement.   

 

Clause 16 Responsibilities of the general manager

The general manager shall be directly responsible to the board of directors, and shall be responsible for implementing and completing the resolutions of the board of directors, organizing and leading the operating activities of the JVC and leading the routine administrative work of the JVC. The general manager shall enjoy the powers and authorities authorized by the board of directors. The general manager shall sign business contracts upon written authorization by the chairman.

 

Clause 17 Liabilities of the general manager for breach of contract

The general manager shall not concurrently hold any position of other economic entities that have no investment with the JVC, nor participate in any business competing with the businesses of the JVC. In case the general manager has improper leadership, bad work, conducts malpractice for personal gains or is seriously derelict of his duties, he may be dismissed from time to time upon approval by the executive director.

 

Clause 18 Any senior manager of the JVC shall give a 90-day’s written application for resignation to the board of directors before he leaves his position.

 

Chapter 7 Labor

Clause 19 Employment, dismissal, salaries, labor insurance, welfare, reward and punishment of the JVC’s employees shall be bound by the provisions of the PRC on labor administration of foreign-invested enterprises, the regulations of shanghai on labor and personnel administration of foreign-invested enterprises and their measures for implementation. The specific plans shall be worked out by the board of directors and the JVC shall enter into labor contract with each employee in accordance with the provisions of shanghai on labor contract. Each labor contract concluded shall be filed with the local administrative department for labor. The JVC may, in accordance with the applicable laws and regulations of China, employ foreign employees.

 

Clause 20 The engagement, salaries, labor insurance, welfare and traveling criteria of the senior managers of the JVC shall be decided by the board of directors through discussion by reference to the market standards.

 

Chapter 8 Taxation, Finance and Audit

Clause 21 The JVC shall, in accordance with the applicable laws and regulations of China, pay various taxes and shall be entitled to preferential policies as stipulated in the laws of China.

 

Clause 22 The employees of the JVC shall pay the individual income taxes in accordance with the Law of the P.R.C. on Individual Income Tax.

 

Clause 23 In accordance with the detailed rules for implementation of the Law of the P.R.C. on Chinese-Foreign Equity Joint Ventures, the JVC shall withdraw the reserve funds and the employee’s bonus and welfare funds from the annual after-tax profits. The ratio of withdrawing the reserve funds shall not be less than 10% of after-tax profits, and the reserve funds may no longer be withdrawn in case the amount accumulatively withdrawn is up to 50% of the registered capital. The ratio of withdrawing the employee’s bonus and welfare funds may be decided by the board of directors according to the operation of the JVC.

 

Clause 24 The fiscal year of the JVC shall be from January 1 until December 31 of each calendar year. All accounting vouchers, bills, statements and books shall be made in Chinese, and may be made in English if necessary. the JVC shall use RMB as its functional currency.

 

Clause 25 Each party may review the accounting vouchers, bills, statements and books of the JVC, and the financial department of the JVC shall facilitate such review and actively provide assistance.

 

Clause 26 Within the first three months of each fiscal year, the balance sheet, profit and loss statement and profits allocation statement shall be prepared under the organization of the general manager, and shall be submitted to the board of directors for examination and approval.

 

Chapter 9 Allocation of Profits and Assumption of Risks

Clause 27 Allocation of profits

After the JVC has paid various taxes according to law, cover the losses for the previous years and withdraw the reserve funds and bonus and welfare funds, the net profits shall be allocated in proportion to the capital contributions of both Parties.

 

Clause 28 The profits of the foreign shareholder may be converted into foreign exchange and remitted out of China in accordance with the applicable laws.

 

Clause 29 In case of losses suffered by the JVC, the risks and liabilities of operation shall be borne by both Parties in proportion to their capital contributions.

 

Chapter 10 Foreign exchange

Clause 30 All matters regarding foreign exchange during the business operation of the JVC shall be bound by the Foreign Exchange Control Regulations of the People’s Republic of China and the applicable provisions.

 

Chapter 11 Term of the Joint Venture

Clause 31 The operating term of the JVC shall be 30 years, and the date of issuance of the business license shall be the date when the JVC is established. As proposed by either party and upon approval by the board of directors, an application for extension of the term of the joint venture may be brought to the original examining and approving authority six months prior to expiration of the term.

 

Chapter 12 Disposal of Properties upon Expiration of the Term of Joint Venture

Clause 32 Upon expiration of the term of the joint venture or early termination of the joint venture, the JVC shall carry out liquidation according to law, and the remaining properties after such liquidation shall be allocated to the Parties in proportion to their capital contributions.

 

Chapter 13 Insurance

Clause 33 Various insurances of the JVC shall be effected with the insurance companies in China, and the coverage, insured value and insurance term shall be decided by the board of directors according to the provisions of such insurance companies.

 

 

Chapter 14 Entrustment for Application

Clause 34 In order to ensure smooth progress of establishment of the JVC, the Parties agree to jointly authorize Party B to, on behalf of all sponsoring shareholders, handle all procedures for application for establishment of the JVC and the matters for preparation of establishment, and implement and complete various work of application for establishment of the JVC and the relevant matters, including but not limited to the following work: draft and sign the report on preparation for establishment of the JVC, the articles of association (draft) and other documents; apply for pre-approval of the name of the JVC, open the special bank account, handle the procedures for capital verification; engage agencies.

 

Clause 35 The expenses required during the preparation for establishment of the JVC shall be borne by the shareholders in proportion to their capital contributions, and shall be advanced by party a temporarily before the capital contributions are made by other shareholders. Such expenses advanced shall be returned by the JVC and included into the expenses for establishment according to relevant provisions after the JVC is established.

 

Clause 36 The expenses required during the preparation for establishment of the JVC shall include: (1) expenses for examination and approval; (2) fees for registration with the administration for industry and commerce; (3) promotion expenses; (4) expenses for printing and materials; (5) expense for capital verification; (6) fees payable to agencies; and (7) other relevant expenses.

 

Chapter 15 Modification, Change and Termination

Clause 37 Any modification of this Contract or its appendixes must be subject to a written agreement signed by both Parties and submitted to the original examining and approving authority for approval, before it becomes effective.

 

Clause 38 In case this Contract becomes unable to be performed due to force majeure, or the JVC becomes unable to continue its business operation due to consecutive loss for years, the term of the joint venture and this Contract may be terminated in advance upon approval by resolution made at the shareholders’ meeting and approval by the original examining and approving authority.

 

Clause 39 If the JVC becomes unable to carry on its business operation or to realize the purpose as agreed in this Contract due to either party’s failure to perform its obligations or serious breach of the provisions as specified in this Contract or the articles of association, the breaching party shall be deemed to terminate this Contract unilaterally, and in such case, the other party may, in addition to claim against the breaching party, apply to the original examining and approving authority for termination of this Contract pursuant to the provisions in this Contract.

 

Clause 40 If, upon expiration of the term of the joint venture, both Parties fails to reach agreement upon extension of such term or to obtain approval on such extension, this Contract shall be deemed to have been terminated automatically.

 

Chapter 16 Liabilities for Breach of Contract

Clause 41 If either party fails to timely pay its capital contributions pursuant to Chapter 5 hereof, it shall pay to the other party the liquidated damages equal to 5% of the amount payable but unpaid by it on a monthly basis, from the first month when such capital contributions become overdue.  If either party fails to pay the capital contributions for more than three months, without prejudice to the liquidated damages payable, the non-breaching party may terminate this Contract and require the breaching party to indemnify it for losses.

 

Clause 42 If this Contract and its appendixes cannot be performed in whole or in part due to fault of either party, the party at fault shall bear the liability for breach of contract.

 

Chapter 17 Force Majeure

Clause 43 In case the performance of this Contract is prevented or it cannot be performed according to the agreed conditions due to earthquake, typhoon, flood, war and other unforeseeable, insurmountable or unavoidable force majeure events, either party or both Parties affected by such force majeure events shall notify the other party of such events by telex, and within 15 days thereafter, provide the particulars of such events and the valid certificates proving that this Contract cannot be performed in whole or in part or its performance needs to be extended. Such certificate shall be issued by the local notarial office of the place where such events occur. In such case, both Parties shall, through consultation, decide whether to terminate this Contract, partly release the liability for performance or extend the performance based on the events’ effect upon the performance of this Contract.

 

Chapter 18 Applicable law

Clause 44 The formation, validity, interpretation, performance and dispute resolution of this Contract shall be governed by the law of the P.R.C.

 

Chapter 19 Dispute Resolution

Clause 45 Any dispute arising out of or in connection with this Contact shall be firstly resolved by both Parties through friendly consultation. If such dispute cannot be resolved through consultation, it shall be submitted to China International Economic and Trade Arbitration Commission for arbitration in according with its arbitration rules. The arbitration award shall be final and binding upon both Parties.

 

Clause 46 During the arbitration proceedings, both Parties shall continue to perform this Contract other than those under arbitration.

      

Chapter 20 Effectiveness and Miscellaneous

Clause 47 This Contract and its appendixes shall be signed by the representatives of both Parties and then submitted to Shanghai Municipal Commission of Commerce for examination and approval, and shall become effective as of the date of such approval.

 

Clause 48 Any notice regarding the rights and obligations of both Parties sent by either party by fax or e-mail shall be accompanied by written letter. The statutory addresses of both Parties as specified in this Contract shall be the addresses for communications.

 

Clause 49 This Contract shall be signed by the representatives of both Parties in Beijing of China.

 

Clause 50 This Contract shall be executed in ten originals, of which, each party and the JVC keep one, and the remaining shall be submitted to the competent authorities for examination and approval or filing.

 

Clause 51 This Contract shall be governed by the law of the P.R.C.

 

(The remainder of this page is intentionally left blank)

 

 

Party A:

Signature of legal representative:

 

 

Party B:

Signature of legal representative:

Official seal:

 

 

-----------------------------

 

January 30, 2013

 

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