1
EXHIBIT 10.15
AMENDED AND RESTATED
EQUITY JOINT VENTURE CONTRACT
between
WUXI ENZYME FACTORY
and
GENENCOR MAURITIUS LTD.
for the establishment of
GENENCOR (WUXI) BIO-PRODUCTS CO., LTD.
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CONTENTS
Chapter 1 General Guidelines.............................................................1
Chapter 2 Parties to the Joint Venture...................................................2
Chapter 3 Establishment of the Joint Venture.............................................2
Chapter 4 Goals, Scope and Scale of Production and Operations............................4
Chapter 5 Total Amount of Investment and Registered Capital..............................5
Chapter 6 Responsibilities of the Parties................................................9
Chapter 7 Contribution and Transfer of Technology.......................................11
Chapter 8 Site, Buildings and Equipment.................................................12
Chapter 9 Sale of Products..............................................................14
Chapter 10 Related Contracts, Confidential Information...................................15
Chapter 11 Board of Directors............................................................16
Chapter 12 Organization of Management Operations.........................................17
Chapter 13 Purchase of Equipment and Supplies............................................18
Chapter 14 Labor Management..............................................................18
Chapter 15 Taxes, Financial Management and Auditing......................................19
Chapter 16 Term of the Company...........................................................20
Chapter 17 Termination, Buyout and Liquidation...........................................20
Chapter 18 Insurance.....................................................................24
Chapter 19 Amendment, Alteration and Discharge of the Contract...........................24
Chapter 20 Liabilities for Breach of Contract............................................24
Chapter 21 Representations and Indemnification by Party A................................25
Chapter 22 Force Majeure.................................................................25
Chapter 23 Applicable Law................................................................26
Chapter 24 Settlement of Disputes........................................................26
Chapter 25 Language......................................................................27
Chapter 26 Validity of the Contract and Other Matters....................................27
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Appendix 1 Articles of Association
Appendix 2 Technology Transfer Contract
Appendix 3 Export Agency Contract
Appendix 4 Trademark License Contract with Party B
Appendix 5 ▇▇▇▇▇▇ Transfer Agreement
Appendix 6 WEF Transfer Agreement
Appendix 7 List of Building, Equipment and Technology Contributed by Party A
As Part of Its Registered Capital
Appendix 8 Intentionally Left Blank
Appendix 9 List of Equipment Transferred by Party A to the Company
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ Liens
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AMENDED AND RESTATED JOINT VENTURE CONTRACT
GENENCOR (WUXI) BIO-PRODUCTS CO. LTD.
WHEREAS, Wuxi Enzyme Factory, a state enterprise registered and
existing under the laws of China ("Party A"), and ▇▇▇▇▇▇, Inc., a company
incorporated and existing under the laws of the State of California, the USA
(the "Original Party B"), entered into the Equity Joint Venture Contract for the
Establishment of Wuxi-▇▇▇▇▇▇ Bio-Products Co. Ltd., on September 11, 1992, which
was amended on July 3, 1996 between Party A and the Original Party B ("Original
JV Contract"), to establish the foreign invested enterprise, Wuxi-▇▇▇▇▇▇
Bio-Products Co., Ltd.
WHEREAS, the Original JV Contract was approved by the Wuxi
Foreign Investment Administration Commission on September 22, 1992; Wuxi-▇▇▇▇▇▇
Bio-Products Co. Ltd therefore was approved to be established by Party A and the
Original Party B (the "Company"); and a business license was issued to the
Company on September 28, 1992.
WHEREAS, upon the establishment of the Company, Party A and
Original Party B together contributed US$8,600,000 in total to the registered
capital of the Company, 75% of which was contributed by Party A and 25% by
Original Party B. An investment verification report was issued by the Wuxi Taihu
Accounting Firm on August 9, 1996 to confirm that Party A and the Original Party
B have each completed its capital contribution as required under the Original JV
Contract and in accordance with Chinese law.
WHEREAS, Genencor Mauritius Ltd. ("Party B") and the Original
Party B entered into the Joint Venture Equity Interest Purchase Agreement
attached hereto as Appendix 5 on May 8, 1998 to transfer all of the Original
Party B's ownership interest in the Company to Party B (the "▇▇▇▇▇▇ Transfer
Agreement").
WHEREAS, Party A has given its consent in writing to the Original
Party B with respect to such transfer to Party B from the Original Party B,
which consent includes a decision by Party A not to exercise its right of first
refusal to purchase the Original Party B's interest in the Company.
WHEREAS, Party B entered into an Equity Interest Transfer
Agreement with Party A to acquire a part of its ownership interest in the
Company on May 10, 1998 attached hereto as Appendix 6 (the "WEF Transfer
Agreement").
WHEREAS, in order for Party B to acquire all of the Original
Party B's interest and a part of Party A's interest in the Company, Party A and
Party B hereby agree to amend and restate the Original JV Contract as follows.
NOW THEREFORE, the Parties agree as follows:
CHAPTER 1 GENERAL GUIDELINES
Party A and Party B, in accordance with the Law of the People's
Republic of China on Chinese-Foreign Equity Joint Ventures and other relevant
officially published laws and
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regulations of the PRC (collectively the "Joint Venture Law"), through friendly
discussions and in conformity with the principle of equality and mutual benefit,
have agreed to amend the Original JV Contract, substitute Party B in place of
the Original Party B, and enter into this Amended and Restated Joint Venture
Contract (this "Contract"). The Company shall continue to be an equity joint
venture company in the city of Wuxi, Jiangsu Province of the People's Republic
of China ("China") for production and sales of enzyme products and other
biotechnological products in China (hereinafter the "Company").
CHAPTER 2 PARTIES TO THE JOINT VENTURE
Article 1
The parties to this Contract are
Party A: Wuxi Enzyme Factory which is registered in Wuxi, Jiangsu, with
its legal address at ▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ (Tel: ▇▇▇▇-▇▇▇▇▇▇▇;
Fax: ▇▇▇▇-▇▇▇▇▇▇▇) and with ▇▇▇▇▇ ▇▇▇▇▇▇▇, the current factory
director and a citizen of the PRC as its legal representative.
Party B: Genencor Mauritius Ltd. incorporated and existing under the
laws of Mauritius, with its registered address at: ▇/▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, TM Building, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Street, Port
Louis, Republic of Mauritius, and with ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as its
legal representative.
CHAPTER 3 ESTABLISHMENT OF THE JOINT VENTURE
Article 2
Parties A and B hereby agree that they shall be the continuing
investors in the Company established on September 28, 1992 and existing in
accordance with the Joint Venture Law.
Article 3
The name of the Company shall be Genencor (Wuxi) Bio-Products Co.
Ltd. in English and [chinese characters] in Chinese. If this Contract is
terminated for any reason, the Chinese name of the Company shall be changed so
that it no longer includes [chinese characters] or any name similar thereto, and
the English name shall be changed so that it no longer includes "Genencor" or
any name similar thereto. If Party B's share of the registered capital of the
Company is reduced to less than fifty percent (50%), then at Party B's request
the Chinese name of the Company shall be changed so that it no longer includes
[chinese characters] or any name similar thereto, and the English name shall be
changed so that it no longer includes "Genencor" or any name similar thereto.
The legal address of the Company shall be ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇, Jiangsu, China.
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Article 4
The Company shall be a legal person of China under the
jurisdiction and protection of Chinese law. All activities of the Company shall
comply with and shall be entitled to the benefits and protection of the
provisions of the relevant published laws, decrees and regulations of China.
Article 5
The Company shall be a limited liability company. Parties A and B
shall be liable to the debts of the Joint Venture Company to the extent of each
subscribed contribution and they shall share the profits, risks and losses in
proportion to each's share of contribution to the registered capital of the
Company. Except as otherwise expressly provided herein, once a Party has paid in
full its contribution to registered capital of the Company, it may but shall not
be required to provide any further funds to or on behalf of the Company by way
of capital contribution, loan, advance, guarantee or otherwise. Creditors of the
Company (including taxation and other authorities) shall have recourse only to
the assets of the Company and shall not seek repayment from any of the Parties.
If the Company's assets are insufficient to satisfy its creditor's claims,
neither of the Parties shall be liable for any deficiency.
Article 6
1. This Contract, including the signed Articles of Association of the
Company annexed hereto as Appendix 1 and the other Appendices hereto,
shall be submitted to the Wuxi Foreign Investment Administration
Commission (the "Examination and Approval Authority") for examination
and approval if required. The date of issuance of a document approving
this Contract in form and substance acceptable to the Parties shall be
referred to as the "Approval Date". It is the understanding of the
Parties that approval of the forms of
(1) the technology transfer contract to be signed between the Company
and Party B or its affiliated company, as initialed as of this
date by the Parties hereto and annexed hereto as Appendix 2 (the
"Technology Transfer Contract");
(2) the export agency contract to be signed between the Company and
Party B or its affiliated company, as initialed as of this date
by the Parties hereto and annexed hereto as Appendix 3 (the
"Export Agency Contract");
(3) the trademark license contract to be signed between the Company
and Party B, as initialed by the Parties as of this date and
annexed hereto as Appendix 4 (the "Trademark License Contract
with Party B");
(4) ▇▇▇▇▇▇ Transfer Agreement and WEF Transfer Agreement, annexed
hereto as Appendix 5 and Appendix 6, respectively (which together
with the Technology Transfer Contract, the Export Agency Contract
and Trademark License Contracts with Party B, collectively
comprise the "Related Contracts").
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will constitute approval of such contracts as subsequently signed
by the parties thereto, as provided in this Contract, and that no
further approvals will be required in order for such contracts to
enter into effect.
2. This Contract shall come into force when it, the ▇▇▇▇▇▇ Transfer
Agreement and WEF Transfer Agreement are approved by the Examination and
Approval Authority. Within 5 days after the Approval Date, Party A shall
notify Party B by faxing Party B a copy of the approval. If, after
signature, the Examination and Approval Authority requests any changes
to the provisions of this Contract or its appendices, the Parties shall
promptly consult to determine whether to make the requested changes and,
if so, sign an amended version. If the Parties do not agree to make the
requested changes, this Contract shall not become valid and neither
Party shall have any liability to the other.
3. The Related Contracts shall come into force on the date of signature
thereof, which signature shall take place within the time periods
provided in this Contract.
4. Promptly, and in no event later than 30 days after the Approval Date,
the Company shall apply to the Wuxi Administration for Industry and
Commerce to register the Company as a limited liability company and to
obtain its new business license. The date of issuance of the new
business license of the Company shall be referred to in this Contract as
the "Current Establishment Date".
CHAPTER 4 GOALS, SCOPE AND SCALE OF PRODUCTION AND OPERATIONS
Article 7
The purposes of Parties A and B to establish the Company are to
strengthen economic and technological cooperation based on the principles of
equality and mutual benefit, to adopt advanced and appropriate technology and
scientific management to introduce new products, to improve production quality,
to reduce production costs and to increase the competitiveness of the products
of the Company in domestic and international markets, to earn foreign currency,
and eventually enable both Parties hereto to obtain satisfactory economic
benefits.
Article 8
The scope of production and business of the Company is to produce
and sell various kinds of enzyme products, other bio-tech products, and
materials and supplies relating to enzyme or other bio-products.
Article 9
The annual production scale of the Company is estimated to be
100,000 to 150,000 tons of enzyme products through process improvement and new
technology importation. The production capacity of the Company may be adjusted
in accordance with market demands and other factors.
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The Company may expand its capacity, develop and add new products
in accordance with the business development of the Company. Any new technology
or new products and production strains developed by the Company shall be owned
by the Joint Venture Company.
CHAPTER 5 TOTAL AMOUNT OF INVESTMENT AND REGISTERED CAPITAL
Article 10
The total amount of investment of the Company shall be US$28.5
million, which includes the registered capital, debt, and working capital of the
Company.
Article 11
1. Party A and the Original Party B contributed US$8.6 million in
total to the registered capital of the Company. Upon contribution by Party B of
the amount of new registered capital as set forth in Chapters 5 and 7 herein,
the registered capital of the Company shall be US $15.6 million, 20% of which
shall be owned by Party A and 80% shall be owned by Party B, according to the
following structure:
[The following space is intentionally left blank.]
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As Stated in As Stated in
Party A Corresponding Party B Corresponding
Registered Capital Percentage Share of Registered Capital Percentage Share of
Party A's Equity Party B's Equity
--------------------------------------------------------------------------------------------
contribution of purchase of Original
Buildings, Equipment Party B's interest
and other current in the Company
assets 20.00% US$2.15 million 13.78%
to the Company:
US$3.12 million
--------------------------------------------------------------------------------------------
purchase of Party A's
interest in the Company:
US$3.33 million 21.35%
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cash contribution for
purchase of new equipment,
upgrades and improvements:
US$3 million 19.23%
--------------------------------------------------------------------------------------------
cash contribution for
reduction of existing debts
of the Company:
US$2 million 12.82%
--------------------------------------------------------------------------------------------
contribution of production
strains:
US$ 2 million 12.82%
--------------------------------------------------------------------------------------------
Total: US$3.12 20.00% Total: US$12.48 million 80.00%
million
--------------------------------------------------------------------------------------------
2. Prior to Party B's acquisition of any interest of Party A or Original
Party B in the Company, both Parties agreed to retain Da Hua Certified
Public Accountants, a reputable independent financial advisor
experienced in the valuation of Chinese manufacturing companies ("Da
Hua") to conduct a financial review of the Company's assets and
liabilities. The Advisory Report About Appraised Value of Assets
(Document No. 1221(97)) issued by Da Hua (the "Da Hua Valuation")
indicates that as of June 30, 1997, the net value of the Company is
$7,560,154, which is the basis on which Party A has agreed to assign,
and Party B has agreed to purchase, a portion of the registered capital
of Company as specified in the WEF Transfer Contract. The Parties hereby
agree that Party A shall transfer a certain percentage of its equity
interest in the company to Party B representing $3.33 million of the
Company's registered capital at a price of $3 million ("Purchase
Price"). Party A shall be responsible for applying for confirmation or
approval by the relevant governmental authorities of such transfer at
such price. In the event that Party B is asked to pay any amount more
than $3 million for the $3.33 million registered capital Party B
acquired from Party A after the Current Establishment Date, Party A
shall indemnify Party B for such additional payment.
3. The Company will retain Da Hua to review the Company's financial
records, prepare and deliver to the Company within 30 days of the
Current Establishment Date: (i) a closing valuation report (the "Closing
Valuation") using the same valuation methods as the Da Hua Valuation,
which Closing Valuation shall take into account a reasonable profit
margin in an amount equal to US$171,800 for the Company's then existing
inventory
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account, and which Closing Valuation will not reflect Party B's
contribution to registered capital, and (ii) an opening balance sheet
prepared according to generally accepted accounting principles in
accordance with the relevant Chinese accounting regulations. In
addition, the Company will cooperate with Da Hua to prepare and deliver
within such time a supplementary opening balance sheet prepared
according to U.S. generally accepted accounting principles.
Article 12
1. Party A contributed Rmb35,475,000 (US$6,450,000) in the form of factory
buildings, equipment, and production strain technology representing 75%
of the registered capital of the Company. The Investment Verification
Reports issued to the Company by Wuxi Taihu Accounting Firm on July 28,
1993 and on August 9, 1996 respectively confirm that Party A has
contributed US$6,450,000 in the form of certain factory buildings,
equipment and production strains and their related technology.
Subsequently, pursuant to the WEF Transfer Agreement, Party A has agreed
to transfer a portion of its registered capital equal to US$3,330,000
to Party B.
2. The Original Party B contributed US$2,150,000 (Rmb11,825,000) in the
form of certain enzyme technology, representing 25% of the registered
capital of the Company. The Investment Verification Reports issued to
the Company by Wuxi Taihu Accounting Firm on July 28, 1993 and on August
9, 1996 respectively confirm that the Original Party B has contributed
US$2,150,000 to the registered capital of the Company. Subsequently,
pursuant to the ▇▇▇▇▇▇ Transfer Agreement, the Original Party B has
agreed to transfer all of its interest in the Company to Party B.
3. Party B shall contribute an additional US$3 million in cash to the
registered capital of the company, which amount shall be used by the
Company at the Board of Directors' direction to purchase new equipment;
make improvements to the Company's facilities, health, safety and
environmental practices, manufacturing, production and storage
processes; and otherwise upgrade the Company's operations.
4. Party B shall contribute an additional US$2 million in cash to the
registered capital of the Company, which amount shall be used by the
Company at the Board of Directors' direction to reduce the existing
debts of the Company to third parties, other than Party A.
5. Party B shall contribute US$2 million to the registered capital of the
Company in the form of production strains as provided in Schedule 1 of
the Technology Transfer Contract.
6. In accordance with the WEF Transfer Agreement in Appendix 6 attached
hereto, Party A has agreed to assign to Party B, and Party B has agreed
to acquire, a portion of Party A's equity interest in the Company such
that when combined with: (i) the capital contribution made by Party B to
the Company pursuant to Articles 12 and 18 hereof; and (ii) the equity
interest acquired by Party B from Original Party B pursuant to the
▇▇▇▇▇▇ Transfer Agreement, Party B then shall own eighty percent (80%)
of registered capital of
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the Company and Party A owns twenty percent (20%) of registered capital
of the Company.
7. Parties A and B agree that the exchange rate for any additional
registered capital contribution by any party hereto shall be based on
the middle exchange rate published by the People's Bank of China on the
date the contribution is made.
8. Party B shall pay 40% of its cash contribution (US$2 million) as
required hereunder to the Company within three months after the Current
Establishment Date and the remaining amount of the cash contribution
(US$3 million) shall be paid within nine months thereafter in
accordance with the business requirements of the Company. Party B shall
contribute US$2 million to the registered capital of the Company in
the form of production strains, as provided in Article 18 below within
12 months after the Current Establishment Date.
9. Party A and Party B agree that neither Party shall be obligated and
bound by any duties and obligations under this Contract unless all of
the following conditions have been satisfied:
(1) This Contract and its appendices shall have been approved by the
Board of Directors of Genencor International, Inc.
(2) This Contract and all or any of its appendices shall have been
approved by the relevant Chinese governmental authorities as
required under law;
(3) All appendices attached to this Contract shall have been duly
executed and effective under law;
(4) A new business license of the Company shall have been issued in
substance and form satisfactory to both parties hereto; and
(5) The Company shall have obtained ownership titles to the factory
buildings, structures and equipment used for the operations of
the Company as listed in Appendix 7 and Appendix 9 and a land use
certificate has been issued in the name of the Company with
respect to the site described in the plot map in Appendix 10;
(6) The Purchase Price shall have been confirmed in writing by the
appropriate state asset management authority;
(7) Party A shall have delivered to Party B documentation or other
written confirmation of the payment of the Company's debt to
Party A; and
(8) Party A or the Company shall have formulated and allowed Party B
or its representative to inspect a list of the Company's
customers and status of such customers' accounts receivable.
10. In the event any financial and loan obligations from Party A to the
Company are not paid or settled prior to the Current Establishment Date,
as evident to Party B and Da Hua,
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Party B may make payment on Party A's behalf directly to the Company out
of the proceeds due to Party A under the WEF Transfer Contract in order
to pay or settle such obligations or guaranties.
Article 13
Party A and the Original Party B each contributed 15% of such
Party's original registered capital of the Company within three months of the
date the original business license was obtained. The remaining amount of the
additional registered capital was contributed to the Company within nine months
after receipt by the Company of its original business license.
Article 14
Upon any additional contribution by each Party to the registered
capital, the Company shall hire an accountant registered in China to verify the
contribution and have the accountant issue an investment verification report to
the Company for the capital contribution. The verification report shall contain
the following information: the name of the Company, the date of its
establishment, the parties to the joint venture and their respective investment,
the date of capital contribution by each Party, and the date of the issuance of
the verification report, etc. Based on such investment verification report or
other documents evidencing acquisition by either Party of the other Party's
interest in the Company, the Company shall issue to each Party an investment
certificate evidencing the total amount of its registered capital contribution
or acquisition, and such Party shall turn in to the Company for cancellation any
prior investment certificate issued to it by the Company.
Article 15
Any transfer by either Party hereto of its interest in the
Company in part or in full to any third party shall be approved by the Board of
Directors of the Company and the Examination and Approval Authority. When one
Party wishes to transfer its interest in part or in full in the Company, the
other Party shall have the right of first refusal to purchase the interest to be
sold.
CHAPTER 6 RESPONSIBILITIES OF THE PARTIES
Article 16
The parties hereto shall have the following responsibilities:
1. Party A shall be responsible for:
(1) Procedural steps for applying to the Examination and Approval
Authority for approval of this Contract, and applying to the Wuxi
Administration of Industry and Commerce for obtaining a new
business license of the Company;
(2) Procedural steps to apply for approval and registration of the
land use rights to the land upon which the Company's facilities
are located as described in Appendix 10 attached hereto ("the
Land"), obtain a land use certificate in the Company's name
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that will entitle the Company to use the Land during the term of
the Company, and paying all taxes, fees and expenses with respect
to the issuance of such land use certificate and its contribution
to the Company of the Buildings as listed in Appendix 7 attached
hereto;
(3) Ensuring that the equipment, factory buildings and structures
contributed by Party A to the Company as provided in Article 12
herein are free from any lien and third party's interest, except
as provided in Appendix 11.
(4) Agreeing to not call debt due to Party A by the Company until
such time as such debt is called by the bank creditor of Party A.
(5) Assisting the Company in recruiting from local resources
management personnel, technicians, workers and other necessary
employees;
(6) Making timely additional capital contribution as agreed between
the Parties;
(7) Assisting foreign employees of the Company in obtaining visas,
work permits and travel approvals; and
(8) Assisting the Company in confirming, implementing or obtaining
the Tax Holidays referenced in Article 38.
(9) Other things to be entrusted to it by the Company.
2. Party B shall be responsible for
(1) Providing to the Company certain technology if the Board of
Directors determines it is desirable for the Company to license
such technology from Party B, through the Technology Transfer
Contract, or otherwise as from time to time agreed provided the
Company and Party B can agree to enter into a technology license
agreement acceptable to the Company and Party B;
(2) Making efforts to distribute the products of the Company in
international markets during the term of the Contract (the
Company shall be entitled to decide the percentage of the foreign
sales in accordance with changes in market conditions and other
factors);
(3) Technical training of the Company's technical personnel,
management personnel and workers in and outside of China at the
Company's expense;
(4) Providing necessary personnel and on-the-spot instructions
necessary for the installation, debugging and trial of equipment
in order to meet technical standards of the equipment and enhance
production efficiency of the Company at the Company's expenses;
(5) Making timely additional capital contribution as agreed between
the Parties;
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(6) Providing relevant business information of foreign markets;
(7) Other things to be entrusted to it by the Company; and
(8) holding back payment of certain amounts payable to ▇▇▇▇▇▇, Inc.
under the ▇▇▇▇▇▇ Transfer Agreement until final resolution of the
lawsuit commenced on December 25, 1997 in Tianjin Intermediate
People's Court [(1998) ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Zi No. 1] commenced by
Tianjin Lihua Food Factory (Enzyme Factory) against ▇▇▇▇▇▇, Inc.
with Wuxi ▇▇▇▇▇▇ Bio-Products Co., Ltd. being named as a third
party alleging breach of contract by ▇▇▇▇▇▇, Inc. and demanding
reimbursement of Rmb4,287,306 including interest, as may be
amended (the "Current Litigation"). In the event Party B fails to
hold back such amounts resulting in the Company incurring losses,
Party B shall indemnify the Company for such losses and hold the
Company harmless against such resulting losses.
3. Party A shall permit the Company to continue to have the right to use
the trademarks of Party A on a royalty-free basis. If deemed necessary
by Party A, the Company and Party A shall enter into a trademark license
agreement allowing the Company to use such trademarks on a royalty-free
basis and on such other terms as reasonably acceptable to the Company
and Party A. Party B shall permit the Company to use certain trademarks
of Party B royalty-free in accordance with the terms of the Trademark
License Contract with Party B attached hereto in Appendix 4.
4. Party B shall cause the Company to allow Party A to have reasonable
access to its property through the Company's land or facilities on
substantially the same terms as currently existing for the current
operations of the Company.
CHAPTER 7 CONTRIBUTION AND TRANSFER OF TECHNOLOGY
Article 17
Party A and the Original Party B contributed production strains
and technologies as their respective contributions to the registered capital of
the Company under the Original JV Contract. Technological agreements were
entered into between the Company and Party A and the Original Party B
respectively for the Company to obtain advanced technologies necessary for the
goal and scope of production and operations specified in Chapter 4 of this
Contract, including strains, processes, testing, formula, quality standard, key
designs and training as required under the Original JV Contract.
Article 18
1. Party A represents and warrants that all strains, production
technologies, processes and testing methods provided by Party A and the
Original Party B, and currently used by the Company to the best of its
knowledge, are complete, accurate and reliable, and they meet the
requirements of the Company for its production and operations.
2. Party A agrees that the two technology transfer agreements attached to
the Original JV Contract shall terminate when this Contract takes
effect. The Company shall retain all
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rights and interests in any technology under such two agreements as it
deems necessary. Party A agrees that the Original Party B has completed
its obligation to contribute to the registered capital of the Company,
based on which it was entitled to 25% of the registered capital of the
Company under the Original JV Contract as amended and replaced by this
Contract. Party A agrees that Party B shall not be responsible for the
obligations of the Original Party B with respect to its technology
contribution under the Original JV Contract and its appendices attached
thereto.
3. (a). The Parties agree that the initial technology to be transferred
by Party B to the Company shall have a total valuation of $22 million,
of which $2 million shall be contributed as registered capital and the
remaining $20 million shall be transferred on a royalty basis for a term
of ten years.
(b). Party B shall contribute to the registered capital of the Company
US$2 million in the form of production strains necessary for the
development of the Company (as separately described in the Technology
Transfer Contract in Appendix 2 attached hereto). Such contribution
shall entitle Party B to receive 12.82% of the registered capital of or
equity interest in the Company. The Company shall acknowledge receipt of
such technology and contribution of registered capital as set forth in
Schedule 1 of the Technology Transfer Contract.
(c). Party B shall license to the Company other valuable technology in
the form of production and process technology, know how and management
expertise necessary for the continued development of the Company, and
for such license shall receive royalties in the amount USD$2 million
per year paid out of the pre-tax net profit of the Company for a term of
ten years, as more particularly described in the Technology Transfer
Agreement in Appendix 2 hereto. In the event that pre-tax net profit of
the Company in any given year shall be insufficient to pay the full
amount of such royalty due for the year, the unpaid amount shall accrue
to Party B and be paid when the Company's pre-tax net profits are
sufficient to cover same. The maximum term of such payment shall be ten
years, except for final payment, which may occur in the eleventh year.
Upon expiration of the ten-year term, the Company will have a perpetual
royalty-free license to use such technology.
CHAPTER 8 SITE, BUILDINGS AND EQUIPMENT
Article 19
1. Party A shall obtain, for the Company a valid land use certificate
providing the Company with allocated land use rights to the Land
situated at ▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇, Jiangsu, as delineated in
red on the plot map attached hereto as Appendix 10 (the "Site").
2. Party A shall obtain, for the Company ownership certificates for all
factory and other buildings contributed by Party A as provided in
Article 12 herein and listed in Appendix 7 attached hereto
("Buildings"). Party A shall pay or reimburse the Company for all costs,
fees and taxes associated with the contribution of the Buildings.
3. Party A represents, warrants and undertakes that:
16
(1) to the best of its knowledge, there are no actual or potential
claims by any government or administrative department, military
unit, enterprise, or any entity or individual that such party has
the right to use, occupy or control the Site and the Buildings or
any part thereof;
(2) to the best of its knowledge, the land use rights over the Site
are not subject to any mortgagee, liens or encumbrances;
(3) the land use rights in the Site will meet the following
specifications upon delivery to the Company:
(a) area: 32,367.80 square meters
(b) user: the Company
(c) water supply facilities: drinking water supply 2,530
metric tons per day
(d) power supply facilities: power supply of 6,000 KVA (based
on two line power supply simultaneously)
(e) drainage facilities: waste water treatment capacity of 380
tons per day; and production water drainage capacity
(including evaporation while in production) of 1,300 tons
per day;
(4) Party A has obtained for the Company the waste water discharge
permit and the construction license issued by the relevant
governmental authorities. There are no other permits or licenses
required by law with respect to the Site and Buildings and
operations of the Company on the Site.
(5) to the best of its knowledge, it is unaware of any current or
anticipated civil, criminal or administrative action or
proceeding with respect to the Site or the Buildings relating in
any way to Chinese Environmental Protection Laws; and
(6) to the best of its knowledge, it is unaware of any events or
conditions which may interfere with or prevent compliance by the
Site or the Building with Chinese Environmental Protection Laws
or which may give rise to any legal liability relating thereto.
4. (1) Party A and the Company entered into an equipment transfer
agreement on September 11, 1992 ("Original Equipment Agreement"),
whereby certain equipment was assigned from Party A to the
Original JV. Party A agrees that the equipment listed in Appendix
9 (the "Equipment") has been legally transferred to and shall be
owned by the Company. The Original Equipment Agreement shall
terminate upon approval of this Contract and all of its
appendices attached thereto by the Examination and Approval
Authority. Party B shall not be bound by any duties and
obligations of the Original Party B in connection with the
Original Equipment Agreement.
17
(2) Party A represents and warrants that the Equipment has been
transferred by Party A to the Company in good working order at
Party A's sole cost and expense, free of any agreements or
understandings that limit Party A's right to transfer the
Equipment to the Company and shall be free from any charges,
liens or other encumbrances. Party A warrants that it obtained
all government approvals necessary and appropriate for the
transfer of the Equipment to the Company, and that the Company
has good title to the Equipment.
5. Party A represents and warrants that all expenses, fees and taxes of
transfer to the Company of the Site, Buildings and Equipment have been
paid by the Company prior to Party B's acquisition of its interest in
the Company, and have been reflected in the Closing Valuation.
6. Party A represents and warrants:
(i) that all support services provided to the Company by Party A (such as
access to the Company's Site, Building and Equipment through Party A's
land or facilities, and waste treatment arrangements) will continue
throughout the term of the Company on substantially the same terms as
currently existing for the current operations of the Company; and
(ii) the Site, Buildings and Equipment operated by the Company at the time of
signing represents the status of the current operations of the Company.
CHAPTER 9 SALE OF PRODUCTS
Article 20
l. The products of the Company shall be sold in markets in and outside of
China.
2. As more fully provided in the Export Agency Contract, Party B or its
affiliate shall arrange for the purchase of, and the Company shall sell
to Party B or the appropriate party, a portion of the Company's products
for sales in the Territory as defined in the Export Agency Contract;
provided that the products to be purchased and distributed thereunder by
Party B shall comply with the quality standards acceptable to Party B.
Article 21
Prices, quantity, places of delivery, payment methods for
international sales of any of the Company's products shall be based on the terms
and conditions of the Export Agency Contract as agreed by Parties A and B in
Appendix 3 attached hereto and which will be entered into by the Company and
Party B after the Current Establishment Date.
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CHAPTER 10 RELATED CONTRACTS, CONFIDENTIAL INFORMATION
Article 22
The Parties agree that, within 10 days of issuance of a new
business license to the Company, they shall cause the Company and the parties to
the Related Contracts affiliated with them to enter into the Related Contracts.
Article 23
1. All technology, know-how, techniques, process, trade secrets, trade
practices, methods, specifications, designs and other proprietary
information disclosed by any Party to the Company under the terms of
this Contract and the Related Contracts or otherwise, including without
limitation the Proprietary Rights and Information under the Technology
Transfer Contract, or developed by the Company as well as the terms of
this Contract and other confidential business and technical information
(collectively, "Confidential Information") shall be used by the Company
and its personnel solely for the Company's account and purposes. Each
Party and the Company shall maintain the secrecy of all Confidential
Information that may be disclosed or furnished to it by the Company or
the other Party; and it shall not disclose, transfer, or reveal any such
Confidential Information to any third party absent explicit written
authorization from the Board of Directors or the relevant Party, as the
case may be.
2. Confidential Information obtained by a Party that is restricted
hereunder may be disclosed by that Party only to its designated
employees whose duties require such disclosure for the implementation of
this Contract. In that event, the receiving Party shall take all
reasonable precautions, including the conclusion of confidentiality
contracts with each such employee, to prevent such employees from using
Confidential Information for their personal benefit and to prevent any
unauthorized disclosure of such Confidential Information to any third
party.
3. The Parties shall also ensure that the Company shall take all reasonable
precautions, including the conclusion of confidentiality agreements with
its employees, to prevent its employees from using Confidential
Information for their personal benefit and to prevent any unauthorized
disclosure of such Confidential Information to any third party.
4. Notwithstanding the foregoing, either of the Parties and the Company may
reveal Confidential Information (i) to government personnel to the
extent necessary to obtain any required governmental approval, and to
outside lawyers, accountants and consultants to the extent necessary for
them to provide their professional assistance, provided that
Confidential Information so revealed in written form is marked
confidential and that such government personnel and outside individuals
shall be requested to undertake to respect the confidentiality
provisions of this Contract and the Technology Transfer Contract, and
(ii) to the extent such Confidential Information is or becomes public
knowledge, was known to such Party prior to receipt from the other
Party, is independently developed by such Party without the use of the
other Party's Confidential Information, is received from
19
a third party without obligation of confidentiality, or is required to
be disclosed by operation of law.
CHAPTER 11 BOARD OF DIRECTORS
Article 24
The Board of Directors of the Company shall be established on the
Current Establishment Date ("Board of Directors").
Article 25
The Board of Directors shall be composed of five (5) members, of
which one (1) shall be appointed by Party A and four (4) by Party B. The
Chairman of the Board of Directors shall be appointed by Party B ("Chairman")
and Vice-Chairman by Party A ("Vice Chairman"). The term of office for the
directors, Chairman and Vice-Chairman shall be four years, renewable upon
re-appointment by the appointing party.
Article 26
The Board of Directors is the highest authority of the Company.
It shall decide all major issues.
Resolutions involving the following important matters shall be
adopted only upon a unanimous affirmative vote of the Board of Directors:
1. Amendment of the Articles of Association of the Company;
2. Termination and dissolution of the Company;
3. Transfer of or increase in the registered capital of the Company; and
4. Merger of the Company with another economic entity.
Decisions on all other matters shall be taken only by a
two-thirds vote of members of the Board of Directors voting in person or by
proxy at a meeting of the Board of Directors.
Upon resolution by the Board of Directors, the Company shall pay
out dividends each year to its investors in proportion to their respective share
in the registered capital of the Company as set forth in Article 11 herein. Such
payment to Party B in US Dollars or another hard currency. Such payment to Party
A shall be in Rmb, or a hard currency available after payment to Party B. The
cost of conversion from Rmb to other currency shall be the cost of the receiving
Party. Such dividends will be limited only by any applicable law or governmental
regulations.
20
Article 27
The Chairman shall be the legal representative of the Company. If
the Chairman is unable to perform his/her duties for any reason, he/she shall
authorize the Vice-Chairman or another Board member to act on his/her behalf on
a temporary basis.
Article 28
Meetings of the Board of Directors shall be held at least once a
year as stipulated by law to be called and presided over by the Chairman. As a
matter of principle the meetings shall be held at the location where the Company
is registered. Upon a motion by two-thirds of the members of the Board of
Directors, the Chairman may convene a special meeting. A record shall be kept of
the minutes of all Board of Directors meetings.
CHAPTER 12 ORGANIZATION OF MANAGEMENT OPERATIONS
Article 29
The Company shall establish a management organization which shall
be responsible for the daily management of its business operations. The initial
management organization shall consist of the General Manager ("General Manager")
to be nominated by Party B and the Deputy General Manager to be nominated by
Party A. The General Manager and Deputy General Manager shall be appointed by
the Board of Directors. The term of office for the General Manager and Deputy
General Manager shall be three years, renewable upon re-nomination by the
Parties hereto and re-appointment by the Board of Directors. General Manager
shall consult with the Deputy General Manager nominated by Party A in making
major decisions with respect to the matters of the Company.
Article 30
The Company shall implement a system under which the General
Manager exercises its power and performing its duties under the leadership of
the Board of Directors. The General Manager shall be responsible directly to the
Board of Directors for implementation of Board of Directors resolutions and day
to day management of the Company. The Deputy General Manager shall assist the
General Manager in performing his responsibilities.
Article 31
Neither the General Manager nor the Deputy General Manager shall
be allowed to participate in business activities of any other economic entities
which compete against the Company in its business activities.
Article 32
In case of poor management, graft or serious dereliction of duty,
the General Manager and Deputy General Manager may be removed and replaced at
any time upon resolution of the Board of Directors. If the General Manager or
Deputy General Manager is
21
discharged or departs, a successor shall be nominated and appointed in the same
manner as the original appointee.
Article 33
The Company may apply for establishment of its branch offices in
other parts of China or outside of China in accordance with business requirement
of the Company.
CHAPTER 13 PURCHASE OF EQUIPMENT AND SUPPLIES
Article 34
The Company shall give priority to purchasing raw materials,
production equipment, means of transportation and office equipment on the China
market, provided that these goods and supplies to be purchased in China shall be
satisfactory to the Company in terms of specifications, technical standards,
quality, reliability and quantity of supplies. Equipment to be imported shall be
selected by Party B on behalf of the Company. For major equipment to be
imported, Party A may be invited to participate in selecting the imported
equipment before an order is placed with a foreign manufacturer.
CHAPTER 14 LABOR MANAGEMENT
Article 35
The Board of Directors shall formulate employment plans with
respect to recruitment, dismissal, employment, early retirement, wages, labor
insurance, welfare benefits, rewards and discipline, etc. in accordance with the
Chinese Labor Law and its implementing regulations. Both parties agree that the
number of employees of the Company on the Current Establishment Date shall be
reduced gradually and the number of employees to be terminated and the terms
thereof shall be decided by the management of the Company and shall be
implemented by the General Manager in accordance with relevant Chinese labor
regulations. The Company shall employ staff and workers on the basis of a labor
contract with the trade union of the Company or each employee. A sample labor
contract shall be filed with the local labor or personnel management department
for the record.
Article 36
The General Manager shall be authorized to employ and dismiss any
employees of the Company in accordance with law, the Articles of Association and
this Contract. Dismissal of any employee shall be filed with the local labor
bureau for the record.
Article 37
The salaries and welfare and other benefits of both Chinese and
foreign management personnel of the Company shall be determined by the Board of
Directors in accordance with the following principles. All personnel shall
receive salaries and welfare and other benefits from the Company commensurate
with their expertise and experience in accordance with the relevant laws and
regulations of China and with consideration of local
22
employment conditions. Compensation to senior management and engineers of the
Company shall be made on the basis of "Same Work, Same Pay". The non-salary
costs of expatriate management such as housing, foreign living allowances shall
be determined by the Board of Directors. Expenses and Costs for traveling,
subsidies and wages of the trainees who are sent by the company abroad for
training at Party B's facilities or elsewhere shall be borne by the Company.
CHAPTER 15 TAXES, FINANCIAL MANAGEMENT AND AUDITING
Article 38
The Company shall pay taxes in accordance with the stipulations
of Chinese laws and other relative regulations.
Party A confirms that prior to the execution date of this
Contract, the Company has not used the favorable tax status ("Tax Holidays")
granted by the appropriate Wuxi City, provincial or Chinese governmental taxing
authority (i.e., 2 years free of tax and 3 years at half the applicable rate of
all taxes on corporate income and profits) to the Company as a foreign invested
enterprise.
Party A confirms that the Company was also granted a fifty
percent (50%) reduction in land use and development fees for five (5) years
commencing January 1, 1998, and therefore after execution and approval of this
Contract, the Company will pay fifty percent (50%) of the current amount: (i)
for land use fees to the appropriate Wuxi governmental entity; and (ii) for
development fees to Party A.
Article 39
Employees of the Company shall pay individual income tax
according to the relevant provisions of Chinese law.
Article 40
The Company shall make annual profit allocations to the reserve
fund, venture expansion fund and the welfare and bonus fund of the Company
("Three Funds") in accordance with the stipulations of the Joint Venture Law.
The Board of Directors shall determine the percentage of profits to be allocated
to the Three Funds for each year.
Article 41
The fiscal year of the Company shall be from January 1 to
December 31. All vouchers, receipts, financial reports and books shall be
written in Chinese and English. The Chinese version shall be controlling if
there is any discrepancy between the two language versions.
23
Article 42
The auditing of the Company shall be conducted by an auditor
registered in China and the auditor's reports shall be submitted to the Board of
Directors and the General Manager. Expenses and costs of all regular auditing of
the Company required by law and the Board of Directors shall be borne by the
Company.
If any Party wishes to employ an auditor from a foreign country
or region to audit the Company, all expenses for such foreign auditing shall be
borne by the party who engages said auditor.
Article 43
Within the first three months of each fiscal year, the General
Manager shall prepare the balance sheet, profit and loss statement and plan for
allocation of profits for the previous year, and submit them to the Board of
Directors for examination and approval.
Article 44
Matters in respect of foreign exchange of the Joint Venture
Company shall be handled in accordance with the relevant laws and regulations of
China.
CHAPTER 16 TERM OF THE COMPANY
Article 45
The term of the Company shall be twenty (20) years beginning from
the original establishment date of the Company when the original business
license was issued.
Upon a motion by any Party hereto and a unanimous resolution by
the Board of Directors, the Company may apply to the Ministry of Foreign Trade
and Economic Cooperation (or its authorized approval agency) for an extension of
the Joint Venture Company's term six months prior to the expiration of the term
of the Company.
CHAPTER 17 TERMINATION, BUYOUT AND LIQUIDATION
Article 46
The Parties may mutually agree in writing to terminate this
Contract at any time. Other than as set forth below, neither Party shall have
the right to terminate this Contract unilaterally. Either Party may give written
notice to the other Party of its intention to terminate this Contract (subject
to the provisions of Articles 47, 48 and 49) at any time if:
1. the other Party fails to perform its obligations under this Contract
(such as in Article 53 herein), or the other Party or its affiliate
fails to perform its obligations under a Related Contract if, in the
reasonable opinion of the non-breaching Party or the non-breaching party
to a Related Contract, such non-performance: (i) defeats the economic
objectives of this Contract or the establishment of the Company; (ii)
creates a material risk of loss to
24
such non-breaching Party or the non-breaching party to a Related
Contract; (iii) materially and adversely affects the value of its
interest in the Company; or (iv) results in the Company being unable to
carry on its business activities or attain its business goals;
2. the land use rights to the Site are rescinded or the level of an
increase in the expenses for using the Land (including the land
improvement fee) is economically burdensome to the Company for any year
(in which case only Party B may terminate this Contract);
3. the Company or the other 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 come due;
4. the accumulated losses of the Company equal thirty five percent (35%) of
the registered capital of the Company;
5. all or any material portion of the assets of the Company are taken from
the Company by any government authority or action;
6. any government authority having authority over the Parties requires any
provision of this Contract to be revised in such a way as to cause
significant adverse consequences to the Company or either Party;
7. the conditions or consequences of Force Majeure (as hereinafter defined)
significantly interfere with the normal functioning of the Company for a
period in excess of six (6) months and the parties have been unable to
find an equitable solution pursuant to Article 56.2 hereof;
8. the Company is unable to satisfy its foreign exchange needs as defined
in the Articles of Association through the local foreign exchange
adjustment center or through designated foreign exchange banks for a
period in excess of ten (10) months.
Article 47
In the event that any Party gives notice pursuant to Article 46
hereof of an intention to terminate this Contract, the Parties shall within an
one (1) month period after such notice is given conduct negotiations and
endeavor to resolve the situation which resulted in the giving of such notice.
In the event matters are not resolved to the satisfaction of the Parties within
one (1) month of such notice or the non-notifying Party refuses to commence
negotiations within such period, then any Party shall have the option of
purchasing the interest of the other Party by giving notice of such intention (a
"Buyout Notice") to the other Party within 30 days of the expiration of the one
month period set forth above; provided, however, that a Party which is in breach
of this Contract, the Articles of Association or a Related Contract, or is
bankrupt or insolvent, or is prevented from performing its obligations hereunder
because of Force Majeure, shall not be permitted to give a Buyout Notice. If a
Buyout Notice is given then the Parties shall comply with the provisions of
Article 48 below. If no Buyout Notice is given, the Board shall immediately
submit an application for termination of this Contract and dissolution of the
Company to the Examination and Approval Authority for approval.
25
Article 48
1. In the event that only one Party gives a Buyout Notice, then the Parties
shall jointly conduct a valuation of the Company. Each Party shall
nominate an independent and competent accounting firm (hereinafter
defined as "appraiser") registered in China within thirty (30) days
after the of delivery of the Buyout Notice to conduct a valuation of the
Company. The two appraisers shall jointly select a third appraiser (or
if they are unable jointly to select an appraiser, the third appraiser
shall be selected by the president of the Singapore International
Arbitration Center in Singapore ("SIAC") from independent and competent
accounting firms registered in China. Each of the three appraisers shall
prepare a valuation report of the Company within sixty (60) days after
delivery of the Buyout Notice, and if the highest valuation does not
exceed by more than 20% the lowest valuation, then the average of the
three valuations shall be adopted. If the highest valuation exceeds by
more than 20% the lowest valuation, then the average of the two closest
valuations shall be adopted. Upon completion of the valuation, the Party
giving the Buyout Notice shall be obligated to purchase the other
Party's share of the registered capital of the Company at a price equal
to the valuation of the Company, calculated in the above manner
multiplied by the other Party's percentage share of the registered
capital of the Company at the time of valuation.
2. If both parties give a Buyout Notice, both parties shall within 15 days
of the delivery of the second Buyout Notice provide their own written
valuation of the Company to SIAC. Once he has received both valuations,
the President of SIAC shall be asked to notify both Parties of amount of
the valuations. The Party with the highest valuation shall be obligated
to purchase the other Party's share of the registered capital of the
Company at a price equal to the purchasing party's valuation of the
Company multiplied by the other Party's percentage share of the
registered capital of the Company at the time of valuation. Failure to
deliver timely a valuation by a Party shall be treated as a valuation of
zero, in which case the other Party shall have the option of using its
valuation or choosing to have the Company liquidated pursuant to Article
49.
3. Upon completion of the procedures set forth in paragraph (1) or (2)
above, the Parties shall promptly enter into a purchase contract
containing terms and conditions customary in international practice for
contracts of such type. The purchasing Party shall complete the payment
of the purchase price within thirty (30) days after the signing of such
purchase contract and the obtaining of all necessary government
approvals. All amounts to be paid by the purchaser to the other party
shall be in US Dollars or another foreign currency as agreed by the
Parties. Both Parties shall use their best efforts to obtain all
required government approvals. If such government approval cannot be
obtained within ninety (90) days after the signing of such purchase
contract by the Parties, the purchase contract shall be null and void
and the Company shall be liquidated in accordance with the provisions of
Article 49 hereof.
4. The Parties shall share equally in all third party costs for the
foregoing procedures, including the fees of the appraisers and the SIAC.
26
Article 49
1. At the expiration of the term of the Company (or extension(s) thereof)
without renewal, or in the event that this Contract is terminated
pursuant to Article 48 and Article 49 hereof and neither party gives a
Buyout Notice, or governmental approvals cannot be obtained under
Article 45, and the Parties cannot agree on the sale of one Party's
registered capital of the Company to the other Party, the Board shall,
within ten (10) days, appoint a liquidation committee (the "Liquidation
Committee") which shall have the power to represent the Company in all
legal matters. The Liquidation Committee shall value and liquidate the
Company's assets in accordance with the applicable Chinese laws and
regulations and the principles set out herein.
2. Unless otherwise agreed by the Parties, the Liquidation Committee shall
consist of five members, of which one member shall be appointed by Party
A, and four members shall be appointed by Party B. Decisions of the
Liquidation Committee shall be made by majority vote, but shall be in
the best interest of both Parties. Members of the Liquidation Committee
may, but need not be, directors or senior employees of the Company. Any
Party may appoint professional advisors to the members of the
Liquidation Committee and the Liquidation Committee may also appoint
professional advisors to the Liquidation Committee
3. The Liquidation Committee shall conduct a thorough examination of the
Company's assets and liabilities, on the basis of which it shall, in
accordance with the relevant provisions of this Contract, develop a
liquidation plan which, if approved by the Board of Directors, shall be
executed under the Liquidation Committee's supervision. The liquidation
plan shall provide that the Parties will have a priority right, assuming
equal price and other terms, over third parties to purchase any of the
Company's machinery, equipment and other facilities.
4. In developing and executing the liquidation plan, the Liquidation
Committee shall use every effort to obtain the highest possible price in
United States Dollars, if possible, for the Company's assets.
5. The name "Genencor" or any other name including "Genencor" (English) and
[chinese characters] (Chinese) shall not be deemed assets of the Company
for purposes of liquidation proceedings, and may not be transferred.
Trademarks of either Party or licensed use thereof shall not be assets
of the Company for liquidation purposes.
6. The liquidation expenses, including remuneration of members and advisors
to the Liquidation Committee, shall be paid out of the Company's assets
in priority to the claims of other creditors.
7. After the liquidation of the Company's assets and the settlement of all
of its outstanding debts in accordance with law, the balance shall be
paid over to the Parties in proportion to their then respective shares
of the registered capital of the Company.
8. On completion of all liquidation procedures, the Liquidation Committee
shall submit a final report approved by the Board of Directors and an
independent accounting firm
27
registered in China to the Examination and Approval Authority, surrender
the Company's business license to the registration authority and
complete all other formalities for nullifying the Company's accounting
books and other documents at its own expenses but the originals thereof
shall be left in the care of Party A.
9. Party A hereby agrees that Party B shall have priority in obtaining the
foreign currency portion of the balance to be distributed under
paragraph (7) above. With respect to the Renminbi portion of the balance
to be distributed to Party B under paragraph (7) above, Party A will:
(1) assist Party B to obtain approval from the relevant Chinese
government departments, and to purchase in Renminbi at the most
favorable prices possible products acceptable to Party B which
party B shall be free to export from China, and/or
(2) assist party B to exchange Renminbi for foreign currency at the
most favorable possible rate through a foreign exchange
adjustment center or through designated foreign currency bank in
China or through other means permitted under Chinese law,
provided that all expenses for exchanging Rmb into US Dollars for
this purpose shall be borne by Party B.
Article 50
The Parties hereby agree to cause their appointed Directors to
act in such manner as to give effect to the provisions of this Chapter 17.
CHAPTER 18 INSURANCE
Article 51
The Company shall obtain the various kinds of insurance from the
People's Insurance Company of China or any other authorized insurance company in
China. The types, amounts and period of insurance coverage shall be decided by
the Board of Directors.
CHAPTER 19 AMENDMENT, ALTERATION AND DISCHARGE OF THE CONTRACT
Article 52
Amendments to the Contract and its appendixes attached hereto
shall not be effective until they are agreed in writing by Party A and Party B
and approved by the Examination and Approval Authority.
CHAPTER 20 LIABILITIES FOR BREACH OF CONTRACT
Article 53
Should a Party hereto fail to make timely capital contribution in
accordance with the provisions of this Contract ("Breaching Party"), it shall
pay to the non-breaching Party 0.05%
28
of the amounts overdue for each day overdue as a breach of contract penalty.
Should the payment be overdue more than 3 months, the non-breaching Party, apart
from the breach of contract penalty as set forth herein, shall have the right to
terminate this Contract in accordance with the terms of Chapter 17.
Article 54
Should a breach of contract by one Party hereto result in losses
to the other Party or the impossibility of the other party to perform this
Contract either in part or in full, the non breaching party shall be entitled to
seek damages from the Party that committed the breach. If both parties hereto
are in breach of this Contract, each shall share pro rata liabilities in
proportion to each Party's breach of contract conduct in line with the
circumstances. In no event shall either party be liable for consequential or
indirect damages.
CHAPTER 21 REPRESENTATIONS AND INDEMNIFICATION BY PARTY A
Article 55
1. Party A represents and warrants that all the assets including, without
limitation, buildings, equipment and technology, which it contributed as
its registered capital to the Company are owned currently by the Company
and are in a good condition and free from any mortgage, lien, pledge or
any other third party's interest (except as described in Appendix 11
hereto) and the Company is entitled to own, use or otherwise dispose of
these assets in its own discretion without being subject to any third
party's interference or interest (except governmental approval or
registration as required by law). Party A agrees to and does hereby
indemnify, defend, and hold harmless Party B and the Company against any
losses, injuries, claims, costs, damages and other expenses incurred by
or charged against Party B or the Company arising from or based on: (i)
any acts, omissions, liabilities, state or statement of facts, damage to
property, injury, breach of contract, or violation of law, including but
not limited to the Chinese Environmental Law, prior to the Current
Establishment Date as defined in Article 6 herein; (ii) the condition of
any of the Company's assets, any health or safety matters, and any
environmental impact, contamination or discharge created by the
Company's operations prior to the Current Establishment Date; and (iii)
breach of any representation or warranty under Article 19 above or
elsewhere in this Contract.
2. Party A shall not be responsible for any defects or losses in the
conditions of the Company's current assets if these defects or losses
have been reflected in the Closing Valuation as defined herein in
Article 11. Party A shall indemnify Party B for any adverse change in
the value of the Company's assets after July 1, 1997 through the Current
Establishment Date in accordance with WEF Transfer Agreement.
CHAPTER 22 FORCE MAJEURE
Article 56
1. If any Party to this Contract is prevented from performing its duties
under this Contract ("Hindered Party") by any force majeure event, such
as earthquakes, typhoons, floods,
29
fires and wars and other events the occurrence and consequence of which
cannot be foreseen, prevented and avoided ("Force Majeure Event"), it
shall not be deemed to be in breach of this Contract if all of the
following conditions are met:
(1) The Force Majeure Event was the direct cause of the stoppage,
impediment or delay encountered by the Hindered Party in
performing its obligations under this Contract:
(2) The Hindered Party used its best efforts to perform its
obligations under this Contract and to reduce the losses to the
other Party or to the Company arising from the Event of Force
Majeure; and
(3) At the time of the occurrence of the Force Majeure Event, the
Hindered Party immediately informed the other Party, providing
written information on such event within 15 days of its
occurrence, including a statement of the reasons for the delay in
implementing or partially implementing this Contract.
2. If a Force Majeure Event shall occur, the Parties shall decide whether
this Contract should be amended in light of the impact of the event upon
the implementation hereof, and whether the Hindered Party should be
partially or fully freed from its obligations hereunder.
3. Notwithstanding anything in the foregoing to the contrary, in no event
shall the occurrence of a Force Majeure Event excuse either Party of its
obligations hereunder to pay to the other Party any sums due hereunder
to such other Party, or for any period longer than the Force Majeure
Event continues.
CHAPTER 23 APPLICABLE LAW
Article 57
The formation, validity, interpretation, execution, amendment and
termination of and settlement of the disputes under this Contract shall be
governed by the published laws of China.
CHAPTER 24 SETTLEMENT OF DISPUTES
Article 58
1. Any disputes arising from the performance of or in connection with this
Contract shall be settled first through friendly consultation between
both Parties hereto. In case no settlement can be reached through
consultation, the disputes shall be submitted to arbitration under the
auspices of the SIAC. There shall be three arbitrators. Each Party shall
select one arbitrator within 30 days after giving or receiving the
demand for arbitration. Such arbitrators shall be freely selected, and
the Parties shall not be limited in their selection to any prescribed
list. The President of the SIAC shall select the third arbitrator. If a
Party does not appoint an arbitrator who has consented to participate
30
within 30 days after the selection of the first arbitrator, the relevant
appointment shall be made by the President of the SIAC.
2. The arbitration proceedings shall be conducted in English and take place
in Singapore. The arbitration tribunal shall apply the Arbitration Rules
of the United Nations Commission on International Trade Law in effect at
the time of the arbitration. However, if such rules are in conflict with
the provisions of this Article 62, including the provisions concerning
the appointment of arbitrators, the provisions of this Article 62 shall
prevail.
3. Each Party shall cooperate with the other in making full disclosure of
and providing complete access to all information and documents requested
by the other Party in connection with such arbitration proceedings,
subject only to any confidentiality obligations binding on such Party.
4. The award of the arbitration tribunal shall be final and binding upon
the disputing Parties, and either Party may apply to a court of
competent jurisdiction for enforcement of such award.
5. Either Party shall be entitled to seek preliminary injunctive relief, if
possible, from any court of competent jurisdiction pending the final
decision or award of the arbitrators.
Article 59
During the period when a dispute is being resolved, except for
the matter being disputed, the Parties shall in all other respects continue
their performance of this Contract.
CHAPTER 25 LANGUAGE
Article 60
The Contract shall be written in Chinese and English with three
counterparts in each language and both versions shall have the same legal
effect. Each Party shall have one counterpart in each language and one
counterpart in both languages shall be submitted to the Examination and Approval
Authority for approval.
CHAPTER 26 VALIDITY OF THE CONTRACT AND OTHER MATTERS
Article 61
The Contract and its Appendices attached hereto constitute the
complete and only agreement by and between the Parties hereto on the subject
matter of this Contract, and shall supersede all previous oral or written
agreements, contracts, understandings and communications of the Parties, in
respect of the subject matter of this Contract.
Article 62
Notices or other communications required to be given by either
Party or the Company pursuant to this Contract shall be written in English or
Chinese and shall be (i) given
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personally; (ii) sent in letter form; (iii) forwarded by reputable
internationally recognized courier service providing written receipt of
delivery; or (iv) by facsimile to the address of the other Party set forth below
or to such other address as may from time to time be designated by the other
Party through notification to such Party, and to the Company at its legal
address as in effect from time to time. The dates on which notices shall be
deemed to have been effectively given shall be determined as follows:
1. Notices given by personal delivery shall be deemed effectively given on
the date of personal delivery;
2. Notices given in letter form shall be deemed effectively given on the
seventh day after the date mailed (as indicated by the postmark) by
certified or registered airmail, postage prepaid, or the day of delivery
by a reputable internationally recognized courier service;
3. Notices given by facsimile shall be deemed effectively given on the
first business day following the date of confirmed transmission, as
indicated on the document in question.
Party A: Wuxi Enzyme ▇▇▇▇▇▇▇
▇▇. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇
Facsimile: (86510)3709726
Attention: Factory Director
Party B: Genencor Mauritius Ltd.
▇/▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
4. Refusal to accept delivery shall be deemed delivery.
Article 63
A Party that in a particular situation waives its rights in
respect of a breach of contract by the other Party shall not be deemed to have
waived its rights against the other Party for a similar breach of contract in
other situations.
Article 64
1. The Contract was executed at Wuxi, China by the duly authorized
representatives of both Parties hereto on May 10, 1998 to amend and
replace the Original Joint Venture Contract and its appendices thereto
entered into on September 11, 1992 and approved to be amended on July 3,
1996 by and between Party A and the Original Party B.
32
2. The Parties agree that this Contract and its Appendices shall not be
submitted for approval by the Examination and Approval Authority and
shall be kept in escrow by O'Melveny & ▇▇▇▇▇ LLP Shanghai office until:
(1) both Parties are satisfied with resolution of the attachment ordered
by the Tianjin Intermediate People's Court on December 31, 1997 with
respect to ▇▇▇▇▇▇'▇ ownership interest in the Company, and (2) Party B
has received approval of these escrowed documents by the Boards of
Directors of Party B and Genencor International, Inc. Upon such
satisfactory resolution, both Parties shall issue a notice in writing to
O'Melveny & ▇▇▇▇▇ LLP to release possession of this
33
Contract and its Appendices to Party A for approval purposes. In the
event (1) and (2) are not achieved by June 30, 1998, neither Party shall
be bound by the terms of this Contract and its Appendices.
For Party A For Party B
WUXI ENZYME FACTORY Genencor Mauritius Ltd.
by: _______________________________ by: _______________________________
Name: _____________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
by: _______________________________
Name: _____________________________
Title: ____________________________