Sino-Foreign Joint Venture Operation Agreement (English Translation)
Exhibit
10.23
(English
Translation)
Article I. General
Provision
This
Sino-Foreign Joint Venture Operation Agreement (the “Agreement”) is entered into
by Digital Learning Management Corp. and shareholders of Changchun Yongxin Dirui
Medical Co., Ltd., namely ▇▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇, pursuant to the
Sino-Foreign Joint Venture Law of the People’s Republic of China and other
relevant laws and regulations based on the principles of equality and mutual
benefit. The Agreement supersedes in its entirety, the original
agreement signed on May 13, 2007, between the same parties.
Article II.
Parties
1.
Parties
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(1)
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Digital
Learning Management Corp. (“Party A”) is a company incorporated in Nevada,
U.S.A.
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Registered
address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, U.S.A
Legal
Representative: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
President Nationality:
U.S.A.
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(2)
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▇▇▇▇▇▇▇
▇▇▇ (“Party B”), male, born in Changchun, Jilin Province, PRC, a P.R.C.
national.
ID
number:__________________
|
|
(3)
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▇▇▇▇▇▇▇
▇▇▇ (“Party C”), male, born in Changchun, Jilin Province, PRC, a P.R.C.
national.
ID
number:__________________
|
Article III. Establishing
Joint Venture
2. The
parties agree to establish a joint venture named Changchun Yongxin Dirui Medical
Co., Ltd. (the “Joint Venture”) in China.
3. The
name of the Joint Venture shall be Changchun Yongxin Dirui Medical Co., Ltd. The
registered address of the Joint Venture is 2152 ▇▇▇ ▇▇▇▇ Rd., ▇▇▇ ▇▇▇▇ District,
Changchun, Jilin Province, China.
4. The
operations and activities of the Joint Venture shall be governed by the laws of
the People’s Republic of China.
5. The
Joint Venture shall be a limited liability company. Each party shall undertake
the risks and liabilities of the Joint Venture and share the profit of the Joint
Venture according to its ratio of ownership.
Article IV. Business
Scope
6. The
purpose of establishing the Joint Venture is to introduce foreign capital and
advanced management methods, expand the company’s business scale, enhance its
competiveness, improve the economic efficiency and bring in more economic
benefits.
7. The
business scope of the Joint Venture includes sale of drugs, health products
(excluding drugs), medical facilities (as within the business scope of the
operation license), sanitary materials, food (as within the business scope of
the operation license), construction materials (excluding steel and wood
materials), textiles and household electronic appliances.
Article V. Capital and
Investment
8. The
total investment of the Joint Venture is RMB 15,000,000.
9. The
RMB 15,000,000 total investment of the Joint Venture contributed by the parties
shall be the registered capital of the Joint Venture.
Among
which:
|
·
|
Party
A contributes RMB 12,000,000, accounting for 80% of the total
investment.
|
|
|
·
|
Party
B contributes RMB 1,650,000, accounting for 11% of the total
investment.
|
|
·
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Party
C contributes RMB 1,350,000, accounting for 9% of the total
investment.
|
10. The
parties shall pay the capital contribution in cash.
11. The
parties shall pay the capital contribution in one payment within three months
after the issuance of the Joint Venture’s business license.
12. Any
party shall not transfer its capital contribution in the Joint Venture, in part
or in whole, to a third party without consent of other parties and the approval
of the relevant government authorities. If all parties approve such transfer of
capital contribution, the non-transferring parties shall have the priority to
purchase the capital contribution.
Article VI.
Obligations
13. The
parties have the following obligations:
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(1)
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Party
A’s obligation:
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||
|
i.
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Party
A shall pay capital contribution pursuant to the
Agreement;
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||
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ii.
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Party
A shall purchase facilities, equipments and materials from merchants
outside of China ;
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|
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iii.
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Party
A shall be responsible for training the management staff and sales staff;
and
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iv.
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Party
A shall be responsible for other matters as assigned by the Joint
Venture.
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(2)
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Party
B’s obligation:
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||
|
i.
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Party
B shall apply for government approval, registration and business license
for the Joint Venture;
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||
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ii.
|
Party
B shall pay capital contribution pursuant to the
Agreement;
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|
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iii.
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Party
B shall purchase facilities, equipments and materials from merchants in
China;
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iv.
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Party
B shall be responsible for recruitment of Chinese employees for the Joint
Venture;
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|
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v.
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Party
B shall assist the foreign employees with process of visa application and
traveling documents; and
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vi.
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Party
B shall be responsible for other matters as assigned by the Joint
Venture.
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(3)
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Party
C’s obligations:
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||
|
i.
|
Party
C shall pay capital contribution pursuant to the
Agreement;
|
||
|
ii.
|
Party
C shall purchase facilities, equipments and materials from merchants in
China;
|
|
|
iii.
|
Party
C shall assist with the recruitment of Chinese employees for the Joint
Venture;
|
|
iv.
|
Party
C shall assist the foreign employees with process of visa application and
traveling documents; and
|
|
|
v.
|
Party
C shall be responsible for other matters as assigned by the Joint
Venture.
|
Article VII. Board of
Directors
14. The
registration date of the Joint Venture shall be the date of the establishment of
the board of directors.
15. The
board of directors shall consist of three directors, among which, two directors
shall be appointed by Party A and one director shall be appointed by Party B and
Party C jointly. The term of director is four years, subject to renewal as
agreed by the appointing party.
16. The
board of directors is the highest authority of the Joint Venture and shall make
decisions in material events, such as amendment of the articles of association,
termination or dissolution of the Joint Venture, increase or decrease of the
registered capital of the Joint Venture, and the acquisition or division of
the Joint Venture.
17. The
general manager is the legal representative of the Joint Venture.
18. The
board of directors shall hold one board meeting per year. Special board meetings
may be held as proposed by more than one third of all directors.
Article VIII.
Management
19. The
management of the Joint Venture shall consist of one general manager, appointed
by Party B, and two deputy general managers, appointed by Party A and Party C.
The term of office shall be four years.
20. The
general manager shall execute all board resolutions and oversee the daily
operations of the Joint Venture; the deputy general manager shall assist the
general manager with all responsibilities. The management may establish several
divisions with the division director as the head of division.
21. The
board of directors may remove the general manager or deputy general manager if
any significant negligence or malpractice is conducted.
Article IX.
Hiring
22. The
board of directors shall make policies on terms of hiring and dismissing
employees, salary, labor insurance, welfare and bonus for the employees pursuant
to the Regulations on the Sino-Foreign Joint Venture Labor Management. Such
policies may be supplemented by the rules of the Joint Venture’s workers’ union
or the employment agreement.
23. The
compensation, social security, benefit and traveling reimbursement of management
members appointed by the parties shall be determined by the board of
directors.
Article X. Tax, Finance and
Audit
24. The
Joint Venture shall pay taxes according to the laws and regulations of
China.
25. The
Joint Venture shall pay the individual income tax according to the Individual
Income Tax Law of the People’s Republic of China.
26. The
employees of the Joint Venture shall receive the reserve fund, enterprise
development fund and the employee bonus fund pursuant to the Sino-Foreign Joint
Venture Law of the People’s Republic of China. The proportion of funds received
by employees each year shall be determined by the board of directors based on
the performance of the Joint Venture.
27. The
fiscal year of the Joint Venture is from January 1 to December 31. All billing,
notes, reports, statements shall be made in Chinese.
28. The
Joint Venture shall engage registered accountants in China for auditing
services. All auditing results and reports shall be submitted to the board of
directors and the general manager. Party A may choose to engage auditors from
other countries at its own expense.
29. The
general manager shall, in the first three months of a fiscal year, draft the
balance sheet, the statement of profit and loss and the profit distribution plan
for the board’s approval.
Article XI. Term of
Operation
30. The
term of the Joint Venture shall be 30 years, starting from the issuance date of
the business license. The parties may agree to renew the term of operation, as
approved by the board of director, and apply with the relevant government
authorities for approval of renewal within 6 months before the expiration of the
term.
Article XII. Distribution of
Assets At End of Operation
31. Upon
the expiration or termination of the Joint Venture, the Joint Venture shall
conduct liquidation. The liquidated assets of the Joint Venture shall be
distributed among the parties according to their ratio of
ownership.
Article XIII.
Insurance
32. The
Joint Venture shall purchase insurance with the China People’s Insurance
Company. The board of directors shall determine the type, value and period of
the insurance.
Article XIV. Amendment and
Termination of the Agreement
33. Any
amendment to this Agreement shall not be effective until executed by all parties
and approved by the relevant government authorities.
24. In
case of a force majeure event, as approved by the proper government authorities
and the board of directors, the Agreement may be terminated or prior to the
expiration of the term.
25. If
any party fails to perform its obligations under the Agreement or the Articles
of Association of the Joint Venture, or seriously breach the Agreement or
violate the Articles of Association, the other parties have the right to claim
for damages and apply with the relevant government authorities for termination
of the Agreement.
Article XV. Breach of
Agreement
36. If
any party fails to pay the capital contribution under this Agreement, the
breaching party shall pay a damage of 2% of the party’s capital contribution
every month starting from the first of month that the payment is overdue. If the
payment is overdue for three months, the non-breach party may terminate the
Agreement and is also entitled to the 2% monthly damage.
37. If
due to fault of any party that the Agreement is rendered void or partially void,
the party at fault shall undertake the liabilities of breach of the Agreement.
If due to the fault of a third party that the Agreement is rendered void or
partially void, all parties to the Agreement shall share the liabilities of
breach of the Agreement.
Article XVI. Force
Majeure
38. If
any party is incapable to perform its obligations under this Agreement due to
the occurrence of an unexpected event, such as earthquake, typhoon, flood, fire
or war, the party shall notify the other parties immediately and provide proof
of the event and reasons to extend the term of its performance within 15 days.
Such proof shall be issued by a public notary at the location of the occurrence
of the event. The parties may terminate the Agreement or exempt some
obligations, or extend the term of performance through
consultation.
Article XVII. Applicable
Laws
39. The
laws of the People’s Republic of China shall be the applicable laws of the
Agreement.
Article XVIII. Dispute
Resolution
40. Any
dispute arising from this Agreement shall be resolved through consultation among
all parties. If no resolution can be reached through consultation, the parties
may submit the dispute to a court with proper jurisdiction in
China.
Article XIX.
Language
41. This
Agreement is made in Chinese.
Article XX.
Miscellaneous
42.
Exhibits to this Agreement, including the Articles of Association of the Joint
Venture, are made according to this Agreement.
43. This
Agreement, with all its exhibits, shall not be effective until approved by the
relevant government authorities.
44. The
registered address of the parties shall be used as the mailing
address.
45. This
Agreement is executed on May 13, 2007 by the authorized signatories of the
parties.
Party A:
Digital Learning Management Corp. (Signature)
Party B:
▇▇▇▇▇▇▇ ▇▇▇ (Signature)
Party C:
▇▇▇▇▇▇▇ ▇▇▇ (Signature)
May 13,
2007
Amendment
to the Sino-Foreign Joint Venture Operation Agreement
As
resolved by the board meeting held on February 12, 2008, the Sino-Foreign Joint
Venture Operation Agreement shall be amended as follows:
Section
11 of Article V of the Agreement shall be amended to “The parties shall pay the
capital contribution based on their ratio of ownership within one year after the
business license of the Joint Venture is issued.”
Shareholder
Signatures:
/s/
Digital Learning Management Corp.
/s/
▇▇▇▇▇▇▇ ▇▇▇
/s/
▇▇▇▇▇▇▇ ▇▇▇
February
12, 2008