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CONTRACTUAL JOINT
VENTURE CONTRACT
(sample)
Chapter 1
General Principles
Shanghai First
Company and Amlink International Corp, in accordance with the Law of the
People's Republic of China on Chinese-Foreign Contractual Joint Ventures
and other relevant laws and regulations of the PRC, through friendly
discussions and in conformity with the principles of equality and mutual
benefit have agreed to invest in and establish a contractual joint
venture in Shanghai, China. The two parties have agreed that the joint
venture undertaking will be First Amlink International, Inc.
(Hereinafter referred to as "the Company") in Shanghai, China. The two
parties conclude this Contract for the contractual joint venture. The
stipulations of the contract are as follows.
Article 1 Parties
The Parties to this
Contract ("the Parties") are:
(1) Shanghai First
Company ("Party A")
Legal Address: 1111 1st
Street, Shanghai, PRC.
Legal Representative:
Mr. Zhang Daili
Title: President
Nationality: PRC
Tel: 86-21-66666-6666
Fax: 86-21-7777-7777
(2) Amlink
International Corp ("Party B")
Legal Address: 7201
Wisconsin Avenue, Bethesda, Maryland, 20814, U.S.A.
Legal Representative:
Ms. Roberta Lipson
Title: Chairman of
the Board, CEO, President
Nationality: U.S.A.
Tel: 1-734-528-9099
Fax: 1-734-528-9336
Article 2 Parties'
Legal Authority
Each Party
represents that
(1) it is a valid
legal person duly established under the laws of the People's Republic of
China or the United States of America and represents that it enters into
this Contract on its own account and that it possesses all necessary
corporate powers and authority to enter into this contract, and to have
its rights and to carry out its obligations hereunder;
(2) the
representative who signs this contract on behalf of the Party has been
authorized to do so;
(3) the obligations
of this Contract become binding from the date the Contract goes into
effect, that is, after final approval by the relevant approval
authorities.
Chapter 2
Establishment of
the Company
Article 3
Legal Status of the Company
(1) The Parties have
agreed to cooperatively establish and manage the Company under the
relevant laws of PRC. The Company shall be a limited liability entity
with the status of an enterprise legal person in China. All activities
of the Company shall comply with, and the rights and interests of the
Company and the Parties shall be protected by, Chinese Law.
(2) The name of the
Company shall be the Shanghai United Family Hospital.
(3) The legal address
of the Company shall be 1111 1st Street, Shanghai, PRC.
Article 4
Limitation of Liability
As a limited
liability entity, each of the Parties to the Company shall be liable for
the obligations of the Company only to the extent of the registered
capital which it has agreed to contribute in accordance with the
provisions regarding Capital Contributions set out below and shall have
no other liability for the debts or obligations of the Company.
Creditors of the Company (including taxation and other authorities)
shall look only to the assets of the Company for payment. Subject to
this limitation, the Parties shall share the profits of the Company as
provided in this Contract.
Article 5 Legal
Protection
The Company is a
legal entity formed according to Chinese law. Its activities will be
under the protection and jurisdiction of Chinese law and regulations.
Article 6
Approvals
This Contract and the
Articles of Association of the Company shall be submitted to the
appropriate government for examination and approval. The Parties will
submit the documents for approval within 30 days of the date of this
Contract. Party B shall, within 30 days of receiving the certificate of
approval, apply to the administrative authorities for industry and
commerce for registration of the Company and obtain its business
license.
Article 7 Date of
Establishment
The official date of
establishment of the Company shall be regarded as the date on which its
business license is issued.
Chapter 3
Purpose and
Business Scope
Article 8 Purpose
Article 9 Business
Scope and Scale
Article 10 Branch
Organization
Under permitting
conditions of the Chinese laws and provisions concerned, the Company
may, after receiving the approval of the Board of Directors of the
Company and examination and approval from the relevant Chinese
government organizations, establish branch organizations within
China.
Chapter 4
Total Investment
and Registered Capital
Article 11 Total
Investment
The total investment
of the Company will be the equivalent of 8,000,000 USD (eight million US
dollars).
Article 12
Registered Capital and Borrowing Authority
(1) The registered
capital of the Company shall be the equivalent of 4,120,000 USD (four
million one hundred and twenty thousand US dollars) in the form of cash.
The remainder of the total amount of investment set forth in Chapter 4,
Article 11, including amounts as required for working capital and other
expenses, shall be raised by way of funds borrowed by the Company.
(2) Payment of the
capital will be administered in accordance with the relevant laws of the
People's Republic of China.
(3) After payment of
the registered capital has been completed, the Patties will arrange for
the issuance of a verification document by an accountant registered in
China.
(6) In the event that
the Board of Directors of the Company determines that it is desirable
for the Company to borrow funds, the General Manager/President of the
Company (`The General Manager/President") shall, within the limits of
his authority as defined by the Articles of Association and by the
Board, arrange for the Company to borrow such funds from a financial
institution within or outside China.
Article 13
Increases in Registered Capital
The registered
capital of the Company can be increased only where (a) the written
approval of both parties has been obtained, (b) the unanimous approval
of the Board of Directors has also been obtained and (c) approval of the
relevant authorities.
Chapter 5
Transfer of
Investment
Article 14
Limitation of Investment Transfer
Subject to the
relevant laws, rules and provisions of the People's Republic of China
and the provisions of this Chapter, during the term of this Contract, no
Party may sell, assign, pledge, or otherwise dispose of (each a
"transfer") all or any part of its interest in the Company without the
prior written consent of the other Party (which consent shall not be
unreasonably delayed or withheld) and the approval of the Examination
and Approval Authority.
Article 15 Written
Consent
When a Party wishes
to transfer all or any part of its right and interest in the Company to
a third party, it must receive the prior written consent of the other
Party. The Party wishing to transfer all or part of its right and
interest in the Company (the "Transferor Party") shall give written
notice to the other a party stating its wish to make such transfer,
proportion of right and interest it wishes to transfer, the price of
such right and interest and the identity of the proposed transferee. The
other party shall have the right of first refusal to purchase such right
and interest on terms no less favorable than those offered to or by such
intended transferee. Within 30 days after notice to such effect from the
Transferor Party, the other Party shall deliver its response stating
whether it chooses to exercise its right to purchase the Transferor
Party's right and interest in the Company. If the other Party fails to
respond to such notice of intent to transfer within the aforementioned
30-day period, it shall be deemed to have given its prior written
consent to the Transferor Party's transfer of its right and interest to
the intended transferee on the terms set forth in the above-mentioned
notice.
Article 16
Transfer to Related Party
Notwithstanding the
foregoing, the Parties agree that any Party may transfer all or any part
of its right and interest in the Company to its parent or majority owned
subsidiary company.
Article 17
Assistance with Approvals
Each Party agrees to
assist in applying to the Examination and Approval Authority with regard
to the approval of any transfer pursuant to this Article.
Article 18
Responsibility of a Transferee
Any transferee of
right and interest in the Company shall assume the corresponding
obligations and responsibilities of the Transferor Party as stipulated
in this Contract.
Article 19
Cancellation Upon Transfer
Upon any transfer by
a Party of all or any part of its right and interest in the Company
pursuant to this Article, the Transferor Party shall turn in to the
Company for change and cancellation its investment certificate issued by
the Company, if applicable.
Chapter 6
Responsibilities
of the Parties
Article 20
Responsibilities of Party A
In addition to other
duties set forth in this Contract, Party A also shall have the following
responsibilities:
(1) to assist the
Company in handling the business license and all other necessary
approvals, licenses and permits for the Company;
(2) to assist the
Company in obtaining permits for imported equipment, instruments, raw
materials, and other goods, as well as assist in handling customs
clearance matters;
(3) to supply the
necessary documents so the Company may arrange for foreign staff their
entry visas, residence permits and work permits;
(4) to use its best
efforts to obtain for the Company all preferential tax treatment within
local and national laws and regulations;
(5) to provide to the
Company and Party B copies of the relevant national and local laws and
regulations, notices, and any other information pertaining to the
Company and the parties;
(7) under the legal
operating conditions of the Company, if an event occurs which would have
a detrimental effect upon the Company or Party B, Party A should make
its best effort to protect the rights and interests of the Company or
Party B;
(8) to assist the
Company in arranging for or renewing relevant insurance coverage within
China;
(9) to assist the
Company in handling relevant bank, financial, tax and supply issues;
(10) to assist in
such other matters as requested by the Company to the extent the
requested party deems it appropriate.
(11) The costs of
handling the said matters will be bore by the Company or Party B.
Article 21
Responsibilities of Party B
In addition to other
duties set forth in this Contract, Party B shall also have the following
responsibilities:
(1) to loan money to
the Company to cover agreed pre-operation expenses and initial working
capital requirements;
(2) to assist, in
accordance with relevant Chinese government guidelines, the Company in
supplying modern equipment, spare parts, services, goods, raw materials,
and all types of medicines needed by the Company;
(3) to assist the
Company in obtaining qualified management, technical and staff as well
as corresponding services;
(4) to assist the
Company and foreign experts to establish contact and enter into academic
exchanges with concerned organizations;
(5) to supply related
equipment and consumable to the Company on favorable terms;
(6) to assist in the
development of a modern management structure for the Company, including
the establishment of operation system, records management system,
required inventory control systems, bookkeeping systems, financial
administration systems, training and quality control systems;
(7) to assist the
Company to arrange for or renew insurance coverage outside China;
(8) to arrange for
the opening of any foreign currency bank accounts required outside
China;
(9) to assist in the
arrangement for Chinese personnel of the Company to visit the United
States for the purpose of technical training, work and other activities,
and making travel, lodging and visa arrangements in connection with such
visits;
(10) to assist in
such other matters as requested by the Company to the extent the
requested party deems appropriate.
(11) The costs of
handling the said matters will be bore by the Company.
Article 22 Service
Agreement
The Parties agree
that the Company will enter into a separate service agreement with the
respective Parties, which stipulate that the Parties shall provide the
necessary services and assistance to the Company during the term of the
Company's operation. And the Company will pay the Parties service fee in
this connection.
Chapter 7
Board of Directors
Article 23
Composition of Board
The Board of
Directors of the Company shall be composed of five directors, of whom
two directors shall be appointed by Party A, and three directors shall
be appointed by Party B. Except as set forth in Article 24 of this
Chapter, the term of office of directors shall be three years, renewable
upon reappointment by the appointing Party.
Article 24
Limitation of Term
(1) The term of any
director who is an employee of Party A or Party B, or companies or work
units affiliated with Party A or Party B, will expire when said director
leaves such employment, whether by death, retirement, or other
termination of employment. In addition, a board member may be removed at
any time by the party which appointed him or her. In such a case, a
written notification must be provided to the other party and to the
Chairman of the Board of Directors.
(2) If a seat on the
Board of Directors becomes vacant, the party that originally appointed
the board member shall appoint a new member within thirty days to
complete the remainder of the vacant member's term.
Article 25
Chairman and Meetings
(1) Party B shall
appoint a board member to assume the post of chairman of the board, who
will be the Company's legal representative. When the chairman of the
board cannot fulfill his or her duties, another board member will be
authorized by the chairman of the board (or by Party B if the chairman
is unable to perform this designation) to fulfill the duties of the
position for such time as is required.
(2) The first meeting
of the Board of Directors shall be convened within one month after the
Company is issued its operating license .
(3) Regular meetings
of the board shall be convened once each year. Meetings shall be called
and presided over by the Chairman. Special meetings of the board shall
be convened by the Chairman at any time on a motion of two or more
directors. All directors shall be notified ten days prior to the
convening of a board meeting. Furthermore, a request by two or more
board members may add discussion items to the board meeting agenda. The
minutes of all board meetings shall be kept on file.
(4) If a member of
the Board of Directors cannot attend a board meeting, he or she can
authorize another board member to vote at the meeting on his or her
behalf. Such authorization must be in writing, can only be to another
board member, and is limited to the particular meeting in question.
(5) Four members of
the board (either in person, or by written authorization to another
board member as described in paragraph (4) above), are required for a
quorum in order to hold a meeting. Except for the issues listed below in
Article 26, decisions of the board are made by majority vote of those
present and voting (in person or by proxy) at a meeting.
Article 26
Unanimous Decisions
Resolutions on the
following issues may by adopted only by unanimous approval of all the
directors (in person or through representation by another board member)
in attendance at a board meeting:
(1) Any amendment of
the Company 's articles of association;
(2) Any increase,
transfer, sale, assignment or other decision relating directly to the
Company's registered capital;
(3) Any merger of the
Company with another economic organization;
(4) Dissolution or
suspension of the Company.
Chapter 8
Management and
Organization
Article 27
Structure
The Company shall
establish an operations management structure, to be responsible for the
management of the Company 's day-to-day work. The management structure
of the Company will consist of a hospital General Manager/President and
other management personnel. The Board of Directors of the Company may
add additional positions to the management structure in the future in
the light of request.
Article 28
Hospital General Manager/President
The Company General
Manager/President shall be appointed by the Board of Directors. The
duties of the General Manager/President shall be to implement the
various resolutions of the Board of Directors and to organize and direct
the day-to-day operations of the Company as more fully provided in the
Articles of Association as well as give a regularly set work report to
the Board of Directors. And the General Manager/President shall be
responsible and subject to the Board of Director.
Article 29
Limitation Term
The appointment and
removal, and the term of the office of the Company General
Manager/President shall be determined by the Board of Directors.
Chapter 9
Business Forecast
and Budget
Article 30 Annual
Business Plan and Budget
The General
Manager/President is responsible for the preparation of the Company's
annual business plan and budget and for presenting them to the Board of
Directors for approval. The business plan and budget should be presented
in January of each year, should contain complete and detailed
information and should contain detailed information on the following
issues:
(1) Proposed
purchases of equipment or other assets;
(2) Complete
projections on sources and uses of funds;
(3) Proposed
activities for the year;
(4) Budget for the
coming year with projected revenues and expenditures;
(5) Plans for
employee training for the year;
(6) Foreign exchange
balance plan;
(7) Proposed policy
guidelines for consideration by the board;
(8) Any plans for
expansion;
(9) Plan for capital
investments and dispositions and borrowings.
Chapter 10
Site
Article 31 Site of
Operation
Party A shall lease
the site for the operation of the Company in accordance with the Lease
Agreement.
Chapter 11
Supply of
Materials and Services
Article 32 Supply
of Materials and Services
The parties have
agreed that the Company should meet international standards.
Accordingly, materials and services related to the construction and
operation must meet rigorous standards comparable to standards
applicable to similar facilities in the United States or European
countries. Where Chinese goods and services can meet these standards,
such goods or services can be purchased in China. When required to meet
standards or for other technical or economic reasons, the supply of such
materials and services will be acquired through channels outside China.
Chapter 12
Labor Management
Article 33 Legal
Requirements
The Company will
comply with the requirements of China's Labor Law and regulations issued
thereunder and arrange worker insurance and welfare expenses, trade
union, and other matters covered by Chinese law and regulations.
Article 34 Labor
Contracts
The Company will sign
labor contracts with its employees. Each labor contract shall include
the agreement reached between the Company and the employee in question
concerning the type of work, technical ability and total wages of such
employee (including but not limited to bonuses, housing subsidies and
welfare benefits). Increases in wages and bonuses shall be determined by
the Board of Directors upon the recommendation of the General
Manager/President.
Article 35 Worker
Safety
The Company shall be
sensitive to the issues related to worker safety and shall take
appropriate measures to create a safe working environment, in accordance
with relevant laws and regulations of the Chinese government.
Article 36 Hiring
and Dismissal of Employees
The Company shall
have the right directly to recruit, hire and dismiss both expatriate and
local staff and workers, as set forth in more detail in the Articles of
Association. In all cases, the Company shall employ only those staff and
workers who are qualified for the assigned responsibilities.
Chapter 13
Finances and
Accounting
Article 37
Accounting System
(1) The Company shall
establish a financial and accounting system in accordance with the
requirements of Chinese laws and regulations relating to the adoption of
accounting systems for joint venture undertakings. To the extent
permitted by applicable law, the accounting system shall utilize methods
and principles that are consistent with or most nearly approximate
generally accepted international accounting principles. The financial
and accounting system shall be consistent with the accounting system
utilized by Party B to the extent permitted by law. The financial and
accounting system shall be implemented after being approved by the Board
of Directors, and shall be filed with the relevant Chinese government
departments for the record.
(2) Financial
statements prepared for the Company shall be prepared in Chinese and
English, shall be true and complete and shall fairly represent the
financial position of the Company as of the date of each such statement
and the results of operations for the fiscal period covered thereby.
Financial reporting to be made available to the Board of Directors and
to representatives of the Parties shall be undertaken in accordance with
international standards and shall include quarterly and annual reports
consistent in form
and content with those of Party B.
(3) The Company will
in principle adopt Reminbi as the standard currency for the keeping of
accounts. The conversion of foreign currencies into Reminbi shall be
calculated according to the rate quoted by the People's Bank of China
for the relevant currency on the date of the relevant transaction,
unless the parties agree on and applicable law permits the use of
another exchange rate for such conversions.
Article 38
Auditing
(1) The Board of
Directors of the Company shall select an independent auditor who shall
be an accountant registered in China who is capable of performing
accounting work meeting both Chinese domestic accounting standards and
international standards. The Board of Directors shall obtain the advice
of the independent auditor in structuring the Company's financial
office, including advice regarding appropriate numbers of personnel,
required levels of expertise and training, and other issues. The
independent auditor will be responsible for reviewing the Company's year
end financial reports and for auditing the income (profit and loss)
statement and the balance sheet. The Chinese and English reports on the
audit shall be given to the Parties, the Board of Directors and the
relevant departments of the PRC government.
(2) All account books
of the Company shall be made available for inspection or audit by either
party or its designated representative at any time.
Article 39
Bank Account and Foreign Exchange
(1) The Company shall
open a foreign exchange account and Reminbi account with bank
established in Shanghai. The Company may also open foreign currency
accounts outside of the PRC to the extent and in the manner allowed by
PRC foreign exchange regulations.
(2) The Company's
foreign exchange transactions shall be carried out in accordance with
the foreign exchange management laws and regulations of the PRC.
Article 40 Fiscal
Year
The fiscal year of
the Company shall begin on January 1 (or on the Establishment Date in
the case of the first fiscal year) and end on December 31 of each year
(or, in the case of the final fiscal year, on the date of expiration of
this Contract or earlier dissolution of the Company in accordance with
the provisions of this Contract).
Article 41
Profit Distribution
(1) The Board of
Directors will, in its discretion, and as required by its independent
accountant, under the condition of being in conformity with laws and
regulations of the PRC, decide upon amounts to be allocated for reserve
funds, employee bonuses, welfare funds and development funds. Unless
otherwise directed by the board, or required by the Company's
independent accountant, the total amount of these funds will not exceed
15% of the annual after-tax profits.
(2) After payment of
taxes and allocation of the funds listed above in paragraph 1, the
Company's after-tax net profit will be utilized for the purposes as
determined by the Board of Directors, including business expansion. This
amount will be split once a year between Party A and Party B, with Party
A receiving 30% and Party B receiving 70%. If the Company is responsible
for previous losses, such losses must be repaid prior to the computation
of available profits for reinvestment or for distribution.
Article 42 Payment
Party A hereby agrees
that it will do everything possible within its power to assist the
Company to pay Party B all of its U.S. Dollar revenue payments on time,
and, after obtaining the approval of the State Foreign Exchange Control
Bureau and adhering to the requirements of Chinese tax and foreign
exchange regulations, to remit foreign exchange out of China.
Chapter 14
Taxation and
Insurance
Article 43
Hospital Taxes
The Company shall pay
taxes and customs duties in accordance with the requirements of
applicable Chinese laws. The Parties shall apply to obtain the benefits
for the Company, the Parties and all of their employees of all of the
applicable tax exemptions, reductions, privileges and preferences of the
PRC.
Article 44
Individual Income Taxes
Employees of the
Company shall pay individual income tax according to the Individual
Income Tax Law of the Peoples Republic of China.
Article 45
Insurance
The Board of
Directors will endeavor to ensure that the Company has adequate
insurance coverage to protect the Company, the Parties, and the
Company's employees from losses. The Company shall obtain property
insurance, property liability insurance, professional liability
insurance, and such other insurance as is, in the judgment of the Board
of Directors, required for the protection of the Company, its personnel
and its patients and customers.
Chapter 15
Confidential
Information
Article 46 General
Requirement of Confidentiality
Both Parties agree
that, once the Company is established, much of the information which is
developed will be of a confidential nature and should be protected
accordingly by each of the Parties. In addition, where information is to
be released to the public, the Parties should consult on the appropriate
timing and method of release and should arrange to keep the information
confidential until said release. In addition, prior to establishment of
the Company the Parties should keep all contract discussions and
information related to the Company's establishment and operations
confidential.
Article 47 Related
Organizations
The Parties shall
endeavor to ensure that the confidentiality requirements stated in
Article 46 of this Chapter are complied with by subsidiaries and related
companies as well as by others to whom such information becomes
available.
Article 48
Employees
Both Parties shall
take appropriate steps to ensure that employees of their organizations
and of related organizations understand the importance of confidential
treatment as described above and comply with guidelines relating to
confidentiality.
Chapter 16
Term of the Joint
Venture
Article 49 Term
The term of
cooperation of the Company shall be 18 years from the establishment
date, or such earlier period if the contract is terminated earlier in
accordance with the provisions of Chapter 17.
Article 50
Extension of Term
Prior to the
expiration of the originally set term of this Contract, or any extension
thereof, the term may be extended upon the agreement of the Parties,
subject to approval by the Examination and Approval Authority.
Negotiations for such extension shall begin not later than one year
prior to the expiration of the originally set term (or extension
thereof) of this Contract and, subject to the successful conclusion of
such negotiations, an application for extension shall be filed with the
Examination and Approval Authority not later than 180 days prior to the
expiration of such term or extension.
Chapter 17
Dissolution and
Liquidation
Article 51 Reasons
for Dissolution
The Company shall be
dissolved and this Contract terminated in accordance with the procedures
set forth in the Law on Chinese Foreign Contractual Joint Ventures, the
relevant laws of the PRC and the Articles of Association of the Company
(1) upon expiration of its original term or any extension thereof, or
(2) if any of the conditions or events set forth below shall occur and
be continuing, in which case the Parties shall cause their
representatives on the Board of Directors, upon motion by either Party,
to unanimously adopt a resolution to dissolve the Company:
(1) Inability to
continue operations because of heavy losses suffered by the Company;
(2) Inability to
continue operations because of an event of Force Majeure (as defined in
Chapter 19);
(3) Failure of either
Party to perform its obligations under this Contract if, in the
reasonable opinion of the non-breaching Party, such non-performance
defeats the economic objectives of this Contract and of the
establishment of the Company or creates a material risk of loss to such
non breaching Party or materially and adversely affects the value of its
interest in the Company;
(4) Failure of any
Party to make its contributions in accordance with the provisions of
Chapter 4 of this Contract, where such failure continues for a period of
more than three months;
(5) Failure of Party
A, Party B or the Company to fulfill the Lease Agreement, so that the
Lease Agreement is terminated.
(6) Effective
exclusion of any Party or its representatives from participation in the
Board of Directors;
(7) Expropriation or
requisition of all or a material portion of the assets or property of
any Party or the Company in China, or in the event that the PRC
government requires a reduction in Party B's right and interest in the
Company;
(8) The suffering by
the Company of consistent losses over an extended period of time and the
accumulation of substantial debt as a result thereof;
(9) The bankruptcy of
the Company or either of the Parties, or the dissolution, termination or
cessation of operation of either party or the Company;
(10) The development
of an unexpected situation in which the Company has no effective way of
operating;
(11) Mutual agreement
of the Patties to dissolve the Company.
Article 52
Liquidation Committee
(1) If, upon the
scheduled expiration of the term of the Company's business license or
upon any earlier proposed dissolution of the Company, neither Party
wishes to continue the Company's business either on its own or together
with a third party, the Board of Directors shall adopt a resolution to
liquidate the Company, formulate liquidation procedures and principles,
establish a liquidation committee, and submit its proposals to the
department in charge for verification. The department in charge shall
supervise the liquidation of the Company, which shall proceed in
accordance with the relevant laws of the PRC, the provisions of this
Contract and the Articles of Association concerned.
(2) The Liquidation
Committee shall be composed of three people, one assigned by Party A and
two assigned by Party B. Either Party may designate an outside expert or
experts to serve on the Committee, so long as Chinese law permits. The
Board of Directors will report the composition of the Liquidation
Committee to the department in charge.
(3) The Liquidation
Committee shall proceed pursuant to a liquidation plan and the Committee
will do its best to obtain the highest value for its assets.
(4) The first
priority in expenditure of funds obtained in the liquidation process is
the repayment of the Company's debts. A reasonable portion of available
proceeds is to be designated for the expenses of the Liquidation
Committee, including consulting fees if applicable.
(5) Once debts and
direct expenses of the Liquidation Committee have been paid, 100% of the
remainder goes to Party B.
(6) Once the
liquidation procedure is completed, the Liquidation Committee should
deliver the final report approved by the Board of Directors to the
examination and approval authority, return the Company's operating
license to the original registration organ, and complete all other
procedures to cancel the registration of the Company. The Company's
original books and other documents shall be given to Party B for
storage.
Chapter 18
Liability for
Breach of Contract
Article 53
Liability for Breach of Contract
Should all or part of
the Contract be unable to be fulfilled owing to the fault of one party,
the breaching party shall bear the responsibilities thus caused. Should
it be the fault of both parties, they shall bear their respective
responsibilities
according to actual situations.
Chapter 19
Force Majeure
Article 54
Suspension of Obligations
When the obligations
of a Party under this Contract cannot be performed in full or in part
according to the
agreed terms as a
direct result of an event that is unforeseeable and of which the
occurrence and consequence cannot be prevented or avoided, such as
earthquake, typhoon, flood, fire and other natural disasters, and other
uncontrollable events, the duties of both Parties as set forth in this
Contract (except for the duties regarding confidentiality in Chapter
15), will be suspended.
Article 55
Notification
The Party which
maintains that an event of Force Majeure has occurred shall immediately
notify the other Party and provide appropriate evidence of the
uncontrollable incident and its duration or estimated duration.
Article 56
Consultation
If an event of Force
Majeure occurs, both Parties should immediately consult each other and
seek appropriate resolution and make every effort to mitigate the
negative impact created by the event.
Chapter 20
Dispute Resolution
Article 57
Consultation
Any dispute,
controversy or claim arising out of or relating to this Contract, or the
interpretation, breach, termination or validity hereof, shall be
resolved through friendly consultation. Such consultation shall begin
immediately after one party has delivered to the other Party a written
request for such consultation. If within 60 days following the date on
which such notice is given, the dispute cannot be resolved, the dispute
shall be submitted to arbitration upon the request of any Party, with
notice to the other Party.
Article 58
Arbitration
Arbitration shall be
conducted before the Shanghai Branch of the China International Economic
and Trade Arbitration Commission in accordance with the procedural rules
for arbitration of the Arbitration Commission. The following conditions
apply to any arbitration:
(1) All arbitration
proceedings shall be conducted in English and Chinese and during the
proceedings all documents shall be prepared beforehand in Chinese and
English;
(2) There will be one
arbitrator who shall be fluent in English;
(3) During the
arbitration proceedings the English version of this Contract will serve
as a reference for the arbitrator;
(4) The arbitrator's
final ruling will have binding effect for both parties. Allocation of
the costs of arbitration will be decided by the arbitrator.
Chapter 21
Miscellaneous
Article 59 Waiver
of Rights
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 60
Transferability
Neither Party may
transfer all or part of this Contract or its rights or obligations under
the Contract with the express written consent of the other Party and
applicable government approvals.
Article 61
Refraining from Competition
In order to ensure
the Parties' interests, so long as this Contract remains in full force
and effect, Party A and Party B guarantee that under no circumstances
will either establish in Changning District, Shanghai, another similar
freestanding, wholly-owned, contractual joint venture, or equity joint,
venture Hospital that competes with the Company established pursuant to
this Contract except as an expansion of this Hospital.
Article 62 Binding
Force
This Contract cannot
be changed by verbal agreement. It can be amended only by written
instrument signed by the authorized representative of each of the two
Parties and must obtain the approval of the relevant Chinese approval
authority.
Article 63
Validity
If any part of this
Contract is found to be invalid this fact does not affect the validity
of the remaining provisions of the Contract.
Article 64
Language
This Contract shall
be written in a Chinese version and an English version. Both language
versions shall have equal validity and effect.
Article 65 Notice
Notices or other
communications required to be given by either Party or the Company
pursuant to this Contract shall be sent in letter form by registered
airmail or international courier service or 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. Notice sent by way of registered airmail shall be deemed
effectively given on the signature date of the receipt for the
registered letter; or
on the tenth day after delivery to an internationally recognized courier
service; Notice sent by fax
will be deemed
received within two working days of the date it was sent. The names and
addresses for official notifications are as follows:
Party A: Mr./Ms.
#1111, 1st
Street, Shanghai 200000, PRC
Phone:
86-21-6666-6666
Fax: 86-21-7777-7777
Party B: Ms.
Amlink International
Corp
2252 Ellsworth Road
Ypsilanti, MI 48197,
U.S.A.
Phone: 734-528-9099
Fax: 734-528-9336
Article 66 Entire
Agreement
This Contract and its
attachments constitute the entire agreement between the Parties. It
replaces all previous meeting minutes and agreements between the
Parties.
Article 67
Examination and Approval
This Contract must be
examined and approved by the Ministry of Foreign Trade & Economic
Cooperation, PRC.
This Contract is
executed by the representatives of the Parties on February 8, 2002 in
Shanghai, China.
For Party A For Party
B
Shanghai First
Company
_________________________________
_________________________________
President Chairman of
the Board, President, CEO |
