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Joint Venture Agreement

Joint Venture JV Agreement

Joint Venture Agreement | Document Parties: DIODES INC /DEL/ | Chengdu Ya Guang Electronic Company Limited | Diodes Hong Kong Holding Company Limited | DIODES TECHNOLOGY (CHENGDU) COMPANY LIMITED | Sino-Foreign Joint Venture You are currently viewing:
This Joint Venture JV Agreement involves

DIODES INC /DEL/ | Chengdu Ya Guang Electronic Company Limited | Diodes Hong Kong Holding Company Limited | DIODES TECHNOLOGY (CHENGDU) COMPANY LIMITED | Sino-Foreign Joint Venture

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Title: Joint Venture Agreement
Date: 11/12/2010
Industry: Semiconductors     Sector: Technology

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Exhibit 99.1

Dated            day of            , 2010

Joint Venture Agreement *

- by and between -

Diodes Hong Kong Holding Company Limited
Party A

- And -

Chengdu Ya Guang Electronic Company Limited
Party B

IN RESPECT OF
THE ESTABLISHMENT OF
DIODES TECHNOLOGY (CHENGDU) COMPANY LIMITED

Diodes Technology (Chengdu) Company Limited

A SINO-FOREIGN EQUITY JOINT VENTURE

 

*

 

Confidential treatment has been requested with respect to all the redacted portions of the Joint Venture Agreement, which has been filed separately with the Securities and Exchange Commission.

 


 

Table of Contents

 

 

 

Article 1.

 

General Provisions

Article 2.

 

Parties to the Agreement

Article 3.

 

Establishment of the Company

Article 4.

 

Purpose, Scope of Business and Scale of Operations

Article 5.

 

Total Amount of Investment and Registered Capital

Article 6.

 

Transfer of Equity Interest

Article 7.

 

Responsibilities of Each Party

Article 8.

 

Site

Article 9.

 

Board of Directors

Article 10.

 

Management Body

Article 11.

 

Labor Management

Article 12.

 

Taxes, Accounting, Audit and Profit Distribution

Article 13.

 

Confidentiality

Article 14.

 

Duration of the Company

Article 15.

 

Termination and Dissolution

Article 16.

 

Asset Disposition on Termination and Liquidation

Article 17.

 

Insurance

Article 18.

 

Amendment and Modification to the Agreement

Article 19.

 

Liability for Breach of the Agreement

Article 20.

 

Force Majeure

Article 21.

 

Changes in Law

Article 22.

 

Governing Law

Article 23.

 

Dispute Resolution

Article 24.

 

Language

Article 25.

 

Other Related Documents

Article 26.

 

Effectiveness of the Agreement and Miscellaneous

 


 

This JOINT VENTURE AGREEMENT (“ Agreement ”) is made in the city of Chengdu, Sichuan, People’s Republic of China (“ PRC ”) as of the _______day of _______, 2010, by and between Diodes Hong Kong Holding Company Limited, a limited holding company established and existing under the laws of Hong Kong, with its legal address at Unit 511 5/F Tower 1, Silvercord 30 Canton Road, Tsimshatsui, Kowloon, Hong Kong (hereinafter referred to as “ Party A ”), and Chengdu Ya Guang Electronic Company Limited, a limited liability company established and existing under the laws of PRC in the city of Chengdu, Sichuan province, with its legal address at 66 Dong Hong Road, Chenghua district, city of Chengdu, Sichuan province, PRC (herein after referred to as “ Party B ”). Party A and Party B shall hereinafter be referred to individually as a “ Party ” and collectively as the “ Parties .”

Article 1 General Provisions

After friendly consultations conducted in accordance with the principles of equality and mutual benefit, the Parties have agreed to establish an equity joint venture (“ EJV ”) in accordance with the Law of PRC on Sino-Foreign Joint Venture and its implementing rules, the Company Law of the PRC as well as other relevant PRC laws and regulations, and the provisions of this Agreement.

Article 2 Parties to the Agreement

2.1 Parties to this Agreement are as follows:

Diodes Hong Kong Holding Company Limited , a limited holding company established and existing under the laws of Hong Kong, with its legal address at Unit 511 5/F Tower 1, Silvercord 30 Canton Road, Tsimshatsui, Kowloon, Hong Kong, and its Chairman of the Board of Directors being Dr. Keh-Shew Lu, a United States of America national.

Chengdu Ya Guang Electronic Company Limited , a limited liability company established and existing under the laws of PRC in the city of Chengdu, Sichuan province, PRC, with its legal address located at 66 Dong Hong Road, Chenghua district, city of Chengdu, Sichuan province, PRC, and its legal representative being Mr. He Fang, a PRC national.

2.2 Party A represents and warrants to Party B as follows:

          (a) Party A is a legal entity duly established and validly existing under the laws of Hong Kong, with the capability of independently assuming its legal responsibilities;

          (b) The acts of Party A pursuant to this Agreement are purely civil acts under the law and not those of government or exercising state authority. Party A enjoys no immunity (including, but not limited to, immunity from litigation, arbitration and mandatory enforcement) in any dispute arising out of this Agreement or any means of resolving such disputes (including, but not limited to, court trial and arbitration and mandatory enforcement); and

          (c) The signing and performance of this Agreement by Party A does not violate any laws of Hong Kong, or any of Party A’s corporate documents, and has been duly authorized by its Board of Directors.

2.3 Party B represents and warrants to Party A as follows:

          (a) Party B is a legal entity duly established and validly existing under the laws of PRC, with the capability of independently assuming its legal responsibilities:

 


 

          (b) The acts of Party B pursuant to this Agreement are purely civil acts under the law and not those of government or exercising state power. Party B enjoys no immunity (including, but not limited to, immunity from litigation, arbitration and mandatory enforcement) in any dispute arising out of this Agreement or any means of resolving such disputes (including, but not limited to, court trial and arbitration and mandatory enforcement); !

          (c) The signing and performance of this Agreement by Party B does not violate any PRC laws or any of Party’s B’s corporate documents, and has been duly authorized by its Board of Directors.

Article 3 Establishment of the Company

3.1 The name of the joint venture company to be established in accordance with this Agreement (the “Company”) shall be:

Name in Chinese (Pinyin):

Name in English: Diodes Technology (Chengdu) Company Limited

Address: No. 1 Standard Factory, 8 Kexin Road, Chengdu Hi-Tech Zone (West Park), Chengdu, Sichuan, PRC.

3.2 The Company may establish branch offices abroad or in the other cities or areas in PRC based on resolutions of the Board of Directors made under Article 9 hereof and after obtaining the requisite approvals under the laws and regulations of PRC.

3.3 The Company shall acquire the status of an enterprise legal person after the registration and issuance of a business license in PRC. It shall observe the applicable laws, regulations and relevant rules in PRC.

3.4 The Company shall operate with limited liability. Each Party assumes limited liability to the extent of its respective capital contribution subscribed thereto, and share of the profits of the Company in accordance with relevant provisions of this Agreement. The Company assumes the responsibility for the indebtedness of the Company to the extent of its assets. No Party shall have any liability to the Company, other than the requirement to make such contribution, or to any third party in connection with the activities of the Company either jointly or severally, unless otherwise agreed to in writing by the Parties or provided by laws. In no event shall any Party be responsible for any losses, risks, liabilities or obligations whatsoever resulting from any act of the other Party.

Article 4 Purpose and Scope of Business of the Company

4.1 The purposes of the Company are as follows: strengthen economic cooperation, absorb overseas capital, purchase overseas advanced technology and equipment, fully develop the potential of the Parties to adopt scientific management methods, develop new products and new inventions, explore international markets, increase exports, improve quality, increase productivity and lower costs, raise economic results, operate profitably and ensure satisfactory financial and economic benefits for each Party.

4.2 The business scope of the Company is to provide surface mounting component production, assembly and testing, and integrated circuit assembly and testing work.

Article 5 Total Amounts of Investments and Registered Capital

5.1 The initial registered capital of the Company is USD 50 million.

 


 

5.2 The initial registered capital of the Company shall be contributed in the following manners:

     USD 47.5 million by Party A, an amount equal to 95% of the registered capital of the Company; and

     USD 2.5 million by Party B, an amount equal to 5% of the registered capital of the Company.

5.3 All Parties shall contribute their registered capital in cash. No Party shall be entitled to receive any interest on its capital contribution.

5.4 Each Party shall initially inject twenty percent (20%) of its respective contribution in the initial registered capital of the Company within one hundred and eighty (180) calendar days from the date of issuance of the business license of the Company. The remaining eighty percent (80%) of the initial registered capital shall be contributed in full within two (2) calendar years from the date of the issuance of the business license of the Company or within thirty (30) calendar days of receipt of a written request therefore from the Company.

5.5 The registered capital of the Company will be increased as follows:

5.5.1 At the end of the [REDACTED] * year from the date of issuance of the business license of the Company, the registered capital of the Company shall be increased to [REDACTED] * .

5.5.2. At the end of the [REDACTED] * year from the date of issuance of the business license of the Company, the registered capital of the Company shall be increased to [REDACTED] * .

5.5.3 Except as otherwise stated in the terms of Sub-sections 5.5.1 and 5.5.2, the Parties hereby agree that, at any time during the term hereof, and at the proposal of any Party and after approval of the Board of Directors and relevant authorities, the registered capital shall be increased as needed by the Company for the purpose of expanding the business or operation of the Company, provided that such increase is in compliance with the purpose and within the scope of the business of the Company as stated in sub-Sections 4.1 and 4.2 above, as amended.

5.5.4 If registered capital of the Company is to be increased under Sub-sections 5.5.3 and 5.6, and subject to Sub-section 5.5.3 above, both Parties shall make and cause their appointed directors on the Board of Directors to approve the necessary resolutions for such increase and the related change described in sub-section 5.6 above and complete the implementation of such increase and the related change.

5.5.5. All Parties shall negotiate in good faith a reasonable timeline with each other, and may only adjust such timeline with the prior written approval of the other Party, to realistically complete the increase under this Section 5.5 of the Agreement in the registered capital of the Company.

5.6 Each Party shall have the priority right to contribute to any initial registered capital of the Company as stated in Section 5.2 or increase in the registered capital as stated in Sub-sections 5.5.1, 5.5.2 and 5.5.3 above in proportion to each Party’s then percentage of ownership of the registered capital of the Company. If a Party declines to exercise its priority right of contribution or fails to make such initial or additional contribution within the time required under the relevant Board resolutions made hereunder, the other Party shall have the first right to contribute and to make such initial or additional contribution as to any portion of the initial or increased registered capital not subscribed by the former. Whether or not any Party declines to exercise its priority right of contribution or fails to make such initial or additional contribution, a revised percentage of ownership of the Company between Parties shall be determined in accordance with the then overall cumulative contribution of each Party to the total registered capital of the Company.

 

*

 

Confidential treatment has been requested with respect to all the redacted portions of the Joint Venture Agreement, which has been filed separately with the Securities and Exchange Commission.

 


 

5.7 The total amount of investment of the Company will be increased as follows:

5.7.1. At the end of the [REDACTED] * year from the date of issuance of the business license of the Company, the total amount of the investment of the Company shall be increased to [REDACTED] * .

5.7.2 At the end of the [REDACTED] * year from the date of issuance of the business license of the Company, the total amount of the investment of the Company shall be increased to [REDACTED] * .

5.7.3 The Company shall determine a reasonable timeline and adjust such timeline as necessary from time to time to realistically complete the increase in the total amount of the investment of the Company under this Sub-sections 5.7.1 and 5.7.2 of this Agreement.

5.7.4 If the total amount of investment of the Company was unable to timely increase to such level as stated in Sub-section 5.7.1 or Sub-section 5.7.2, then each Party may promptly contribute in cash or in another equally valuable form as determined by the Board of Directors of the Company to achieve such level of increase in Sub-section 5.7.1 or Sub-section 5.7.2.

5.8 After each Party has made its respective contribution to the registered capital of the Company under Sections 5.4, 5.5 or 5.6 of the Agreement, the Company shall, on the basis of a verification report made by a Certified Public Accountant registered in PRC, issue to such Party an investment certificate evidencing payment of the total amount of its contribution as of the date of the latest contribution.

Article 6 Transfer of Equity Interest

6.1 If any Party (the “Selling Party”) desires to sell, transfer, assign, hypothecate, pledge, create any interest in or otherwise dispose of all or any part of its interest in the Company (the interest to be transferred hereinafter referred to as the “Interest”), the Selling Party shall follow the procedure set forth below:

 

(a)

 

If any third party (a “Third Party Offeror”) offers to acquire from the Selling Party any Interest, then the Board of Directors shall determine if the Third Party Offeror is a competitor of the other Party.

 

(1)

 

If the Board of Directors determines that the Third Party Offeror is a competitor of the other Party, then the Board of Directors’ prior approval to the proposed transfer of the Interest will be required.

 

 

(2)

 

If the Board of Directors determines that the Third Party Offeror is not a competitor of the other Party, then the Selling Party may make the proposed transfer of the Interest to the Third Party Offeror, provided that:

 

 

(i)

 

The Selling Party first shall deliver to the other Party a written notice, which shall describe the Interest to be transferred and the terms and conditions of the transfer. The other Party shall have the right to acquire all or any part of the Interest to be transferred by notifying the Selling Party in writing of its intention to acquire all or a portion of the

 

*

 

Confidential treatment has been requested with respect to all the redacted portions of the Joint Venture Agreement, which has been filed separately with the Securities and Exchange Commission.

 


 

 

 

 

Interest within twenty (20) business days after receiving the written notice of the Selling Party. If the purchase price offered by the Third Party Offeror is less than one point five times (1.5x) the Net Asset Value of the Interest to be transferred, the other Party shall have the right to purchase all or any part of such Interest on the same terms and conditions as the Third Party Offeror. If the purchase price offered by the Third Party Offeror is above one point five times (1.5x) the Net Asset Value of the Interest to be transferred, the other Party shall have the right to purchase all or any part of such Interest at one point five times (1.5x) the Net Asset Value of the Interest to be transferred. If the other Party declines to purchase any portion of such Interest, the remaining portion can be sold to the Third Party Offeror on the terms and conditions set forth in the Selling Party’s notice. The term “Net Asset Value” shall mean the Company’s total assets minus its total liabilities as stated in the Company’s audited financial statements examined by a Certified Public Accountant registered in PRC.

 

(b)

 

Any determination or approval by the Board of Directors under this Section 6.1 shall be in a written consent or by resolution adopted at a duly convened Board meeting, along with any necessary approval of the examination and approving authority.

 

 

(c)

 

In the event the Board of Directors approves the transfer of the Interest to a Third Party Offeror, the Interest shall continue to be and remain subject to all the terms and conditions of this Agreement, and all references in this Agreement to the Selling Party shall include any such third party, and any such third party shall execute a writing obligating it to comply with this Agreement.

6.2 Subject to Section 6.1, any Party desires to sell, transfer, assign, hypothecate, pledge, create any interest in or otherwise dispose of all or part of its Interest may so exercise under the condition of not affecting the Company’s ability to continue to operate under its business license as a foreign investment enterprise and in accordance with the PRC law.

6.3 Subject to Section 6.1, the Selling Party shall provide the other Party with a duplicate of the executed written Interest transfer agreement with the transferee no later than ten (10) working days before the date of such an execution.

6.4 Subject to Section 6.1, all Parties agree that each Party shall have right to purchase the entire Interest of the other Party in the Company where the PRC laws and/or policies allow and under reasonable purchase terms and conditions as determined by the Board of Directors of the Company. If any Party desires to exercise such right, it shall issue a written request to the other Party and all Parties shall use their best efforts to finish such Interest transfer within ninety (90) days from the date of the issuance, subject only to delays caused by obtaining necessary government approvals.

6.5 Neither the business of the Company nor the performance of this Agreement, the appendices hereto, and any other contracts or agreements between the Parties shall be interrupted by any such sale, transfer, assignment, hypothecation, pledge, creation of any interest in or disposition of all or any part of any Party’s Interest.

6.6 The transfer of Interest or increase of capital for the Company shall be subject to the approval of the Examination and Approving Authority as required by PRC law.

Article 7 Responsibilities of Each Party

7.1 Party A shall:

 


 

 

(a)

 

Make its contribution to the registered capital of the Company on time as prescribed under the relevant terms of this Agreement;

 

 

(b)

 

Act and cause its directors to act at all times in good faith with respect to all matters relating to the business of the Company and this Agreement and any other contracts and agreements made pursuant to this Agreement;

 

 

(c)

 

Assist the Company in training its staff and works;

 

 

(d)

 

Provide necessary qualified and experienced personnel to the Company and assist in recruiting of managerial, technical and operational personnel of the Company; and

 

 

(e)

 

Handle other matters set forth in this Agreement or entrusted to Party A by the Company from time to time.

7.2 Party B shall:

 

(a)

 

Make its contribution to the registered capital of the Company on time as prescribed under the relevant


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