• Liu Dongyuan, a Chinese person and
his ID Number is 110105500915151 and having his legal address at
1-1-6, West Compound, south Sanlitun, Chaoyang District, Beijing
(“Party A”);
• Cheng Fei, a Chinese person and his
ID Number is 110108630416639 and having his legal address at
24-331, Xueyuan Rd.42, Haidian District, Beijing (“Party
B”);
• Gao Jianou, a Chinese person and his
ID Number is 110108670721187 and having his legal address at
6-2-402, Xiyuan Garden No.1, Haidian District, Beijing
(“Party C”);
• Wang Huansheng, a Chinese person and
his ID Number is 110108660326542 and having his legal address at
Ganjiakou No.29, Haidian District, Beijing (“Party
D”);
• Han Jingzhe, a Chinese person and
his ID Number is 110104741112253 and having his legal address at
6-102, Maliandao Northern St., Xuanwu District, Beijing
(“Party E”).
• Huizhou TCL Computer Technology Co.,
Ltd., a wholly foreign-owned enterprise duly incorporated and
existing under the laws of China and having its principal office in
Huizhou, China (“TCL” or “Party F”);
and
• Lotus Pacific, Inc., a legal person
duly incorporated and existing under the laws of USA
(“LP” or “Party G”);
after friendly discussions and based
on the principle of equality and mutual benefit, the parties agree
to establish a joint venture company in Haidian District, Beijing,
and hereby sign this JOINT VENTURE CONTRACT of TCL Digital
Technology (Beijing) Company Limited (the “Company”) on
January 18, 2003, in accordance with the Law of the People’s
Republic of China on Joint Ventures Using Chinese and Foreign
Investment and other relevant Chinese laws and
regulations.
All terms defined in this Article 1
or in other provisions of this Contract in the singular shall have
the same meanings in the plural and vice versa.
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1.02
Unless the terms or context of this
Contract otherwise provides, the following terms shall have the
meanings set forth below:
(a)
“Articles of
Association” shall mean the Articles of Association of the
Company executed by the Parties simultaneously with the execution
of this Contract, as the same may be supplemented or amended from
time to time, and (if required) as such supplemented or amended
Articles of Association shall be approved by the relevant
authorities.
(b)
“Board” or “Board
of Directors” shall mean the Board of Directors of the
Company.
(c)
“Confidential
Information” means all Proprietary Information and any other
information that is identified to the recipient orally or in
writing by the party providing such information as being
confidential, provided that in the case of any such information
that has been provided orally or has been identified as
“Confidential Information” orally, the party providing
such information shall confirm its confidential nature in writing
to the recipient not later than sixty (60) days following the
provision thereof to such recipient.
(d)
“Contract” shall mean
this Joint Venture Contract, including all of the Appendices
hereto, as the same may be supplemented or amended from time to
time, and (if required) as such supplemented or amended Contract
shall be approved by the relevant authorities.
(e)
“Effective Date” shall
mean the date on which this Contract becomes effective, which shall
be the date on which each party hereto shall have received a true
and correct copy of the final approval by the Examination and
Approval Authority of each of this Contract and the Articles of
Association. If the Effective Date shall not have occurred
within five (5) months from the date of the signature of this
Contract, or such other date as may be agreed in writing by the
parties, this Contract (other than Article 16) and the Articles of
Association, and everything contained herein (except the
obligations set out in Article 16) and therein shall be null and
void.
(f)
“Employees” shall mean
the full-time regular employees (including full-time regular
expatriate employees) of the Company.
(g)
“Equity Interest” shall
mean, with respect to a Party, the total interest in the registered
capital of the Company held by such Party.
(h)
“Establishment Date”
shall mean the date on which the relevant Administration for
Industry and Commerce shall have duly issued an business license to
the Company as provided herein.
(i)
“Examination and Approval
Authority” shall mean the Ministry of Foreign Trade and
Economic Cooperation of the People’s Republic of China and
any governmental organization authorized by it or any
successor.
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(j)
“Independent Auditor”
shall mean the certified public accountants or auditors registered
in China that are appointed by the Board of Directors of the
Company as its independent auditor.
(k)
“Intellectual Property”
shall mean patents, design patents, industrial designs, utility
models, trademarks, trade dress, proprietary designs, logos,
company names, trade names, copyrights and copyrightable works,
trade secrets and all other intellectual or industrial property
rights.
(l)
“Joint Venture Law”
shall mean, collectively, the Law of the People’s Republic of
China on Joint Ventures Using Chinese and Foreign Investment
promulgated July 1, 1979, the Regulations for the Implementation of
the Law of the People’s Republic of China on Joint Ventures
Using Chinese and Foreign Investment, promulgated September 20,
1983, and all supplements, amendments, interpretations, orders and
notices relating thereto promulgated by the relevant authorities
and in effect as of the date hereof.
(m)
“Joint Venture Term”
shall have the meaning specified in Section 7.01.
(n)
“Products” shall mean
notebook computers and soft-hardware, parts and peripheries
relating to notebook computers, the products of integrations,
network communications, digital electronic products and such other
products as the Company may produce in accordance with the terms of
its business license.
(o)
“Project Documents”
shall mean collectively, this Contract, the Articles of
Association, and any other agreements, contracts or other documents
relating to any thereof, in each case as the same may be
supplemented and amended from time to time.
(p)
“Proprietary
Information” shall mean all Intellectual Property and other
technical and engineering, construction, economic, financial,
sales, marketing and other information developed and/or owned and
provided in writing or orally by the Parties, in connection with
the negotiation of the project contemplated by the Project
Documents or the implementation of this Contract or the other
Project Documents.
The name, place of registration and
legal address of each Party, and the name, position and nationality
of each Party’s legal representative are as
follows:
(a)
Name:
Liu Dongyuan
Legal Address:
1-1-6, West Compound, south
Sanlitun, Chaoyang District, Beijing.
Zhongkai Development Zone for
High-New Technologies, Huizhou
Legal Representative:
Name: Li Dongsheng
Position: Director of
Board
Nationality: Chinese
(g)
Name:
Lotus Pacific, Inc.
Place of Registration:
18200 Von Karman Ave. Suite 730
Irvine, CA 92612
Legal Representative:
Name: Li Dongsheng
Position: Director of
Board
Nationality: Chinese
Parties set out in (a) to (e) of
this section shall be referred to collectively as the
“Chinese Individual Investors”.
2.02Each of the Parties, severally and
not jointly, represents and warrants that:
(a)
Each of the Parties, apart from
Chinese Individual Investors, is a duly organized and validly
existing legal person under the laws of its jurisdiction of
establishment.
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(b)
It possesses full power and
authority to enter into this Contract and the Articles of
Association and to perform its obligations hereunder and
thereunder.
(c)
Its representative has been fully
authorized to sign this Contract and the Articles of Association on
its behalf pursuant to a power of attorney or resolution of its
board of directors.
(d)
Assuming due authorization,
execution and delivery by the other Parties hereto, on the
Effective Date, each of this Contract and the Articles of
Association shall constitute its legal, valid and binding
obligation.
(e)
It is not a party to, nor is it
bound by, any material contract or agreement which would be
violated by its execution or performance of this Contract or the
Articles of Association.
(f)
There are no pending or threatened
legal proceedings, lawsuits, arbitration proceedings,
administrative proceedings or other governmental or court
proceedings, or governmental or court orders, injunctions,
judgments or awards, or arbitration awards to which it is a party
or by which it or any of its assets is or may be bound or affected
of any material nature, or which would affect its ability to
perform this Contract or the Articles of Association.
(g)
It is in compliance with all
material laws, rules, regulations, decrees and orders, and all
interpretations thereof, of all governmental authorities having
jurisdiction over it, or its business, finances, operations or
properties.
(h)
It has no outstanding commitments or
obligations, contractual or otherwise, which would in any way
impede its ability and right to enter into and perform this
Contract or the Articles of Association.
(i)
From and after the date of signature
of this Contract, it will promptly inform the other Parties of any
developments in the status of approval of this Contract, the
Articles of Association and the other relevant Project Documents by
the relevant governmental authorities (including the Examination
and Approval Authority).
(j)
From and after the date of signature
of this Contract to the Establishment Date, any communication by it
in writing with the Examination and Approval Authority regarding
the terms and conditions of this Contract, the Articles of
Association or the other relevant Project Documents shall be copied
and sent simultaneously to the other Parties.
