4^modulo - d.ssa L. Sempi (ISUFI Lecce)

Il contratto di Il contratto di jointjoint ventureventure

Convegno SCINTvenerdì 13 giugno 2003

dott.ssa Laura Sempi

DefinizioneDefinizione

JV=forma di cooperazione fra imprese

per la realizzazione di un obiettivo economico di comune interesse attraverso l’integrazione di risorse complementari

TipologieTipologie• Verticali � imprese nella stessa linea di

produzione, ma con specializzazioni differenti

Orizzontali � imprese sullo stesso mercato

• Contractual JV � semplice accordo associativo tra + imprese

JV corporations � si costituisce un distinto soggetto giuridico

Altre distinzioni:

domestiche/internazionali; strumentali/operative

Caratteristiche comuniCaratteristiche comuni

• + IMPRESE• INTEGRAZIONE delle rispettive ATTIVITA’ &

RISORSE• OBIETTIVO COMUNE

� Apporto dei contraenti in rapporto di FUNZIONALITA’ rispetto all’OGGETTO del contratto

� CONNOTAZIONE FIDUCIARIA

Caratteristiche delle Caratteristiche delle contractual contractual JVJV

� NON si crea un NUOVO SOGG. GIURIDICO

� (generalmente) per una COLLABORAZIONE OCCASIONALE

� strumento + agile e FLESSIBILE

� (generalmente) mandato con rappresentanza all’IMPRESA LEADER per stipulare con i terzi

� (generalmente) opera all’interno un organo collegiale: COMITATO (executing committee, steering committee, management committee…)

� istituzione di un FONDO per far fronte alle SPESE COMUNI

Caratteristiche delle Caratteristiche delle JV corporationsJV corporations

• si forma un NUOVO SOGG. GIURIDICO, distinto dai due o + partners � costituzione di una SOCIETA’ di CAPITALI

• strumento – FLESSIBILE: legislazione societaria spesso per molti aspetti di carattere cogente

• preferite generalmente per INVESTIMENTI a MEDIO-LUNGO TERMINE

• OPERAZIONE COMPOSITA: al JVA si affiancano lo STATUTO, l’ACCORDO QUADRO e alcuni CONTRATTI COLLEGATI

Soluzioni peculiari nella Soluzioni peculiari nella società di JVsocietà di JV

1. allo scopo di garantire il CONTROLLO CONGIUNTO della società

jv paritetica (quote =)

maggioranze qualificate per le decisioni della società (Ass. e CdA)

diritto di veto su decisioni strategiche

ripartizione dei ruoli

…

2. INTUITUS PERSONAEclausole di prelazioneclausole di gradimentodivieto assoluto di alienazione

3. per risolvere il problema di DEAD-LOCKvendita delle azioni all’altro partnerallargamento n° membri dell’organo societariodecisione affidata a un terzo neutrale

STRUTTURA-tipo del JVA

• Titolo• Indicazione delle parti• Premesse• Definizioni• “Corpo centrale” del JVA• Elenco allegati• Data, luogo e sottoscrizione

Punti da valutare prima della stipula

• definizione del progetto comune• analisi della situazione e capacità produttive del

partner• individuazione degli interlocutori• studio di fattibilità• assumere informazioni sul quadro giuridico del

Paese sede della JV• esame degli aspetti valutari, fiscali, doganali e

amministrativi• ricerca di garanzie a protezione degli investimenti,

di incentivi e finanziamenti• scelta della forma giuridica della società• stesura dei contratti satellite• scelta circa il modo di risoluzione delle controversie

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JointJoint Venture in CinaVenture in Cina

Divieto per le persone fisiche cinesi di costituirejoint ventures con partners stranieri

Quota capitale del partner straniero ≥ 25%

Versamento del capitale intero entro 3 anni da registrazione società

Debt-equity ratio

Capitale sociale non può essere ridotto

Equity Joint Venture = forma particolare di Srl (⇒persona giuridica di diritto cinese) costituita da almeno un partner cinese ed uno straniero

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JV

CONTRACTFOR THE ESTABLISHMENT OF

AN EQUITY JOINT VENTURE COMPANY

This Contract is made and entered into as of [data], by and between:

Company A, a company incorporated under the laws of [country], whose registered office is at [address], [country] (hereinafter referred to as "Party A")Legal Representative:Name:Position:Nationality:

and

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Company B, a company incorporated under the laws of the People's Republic of China, whose registered office is at [address], People's Republic of China (hereinafter referred to as "Party B")Legal Representative:Name:Position:Nationality:

Party A represents and warrants to Party B that it is a legal person validly existing in its jurisdiction of establishment (as evidenced by a certified copy of the certificate of incorporation attached to this Contract).

Party B represents and warrants to Party A that…[…]

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WHEREAS

Party A is [recital];

Party B is [recital];

Party A and Party B on [date], have entered into a Letter of Intentwhere discussed the guidelines for the future establishment of the Joint Venture;

Party A and Party B have agreed to form a new Joint Venture Company (hereinafter referred to as the "Joint Venture") which, it isintended, shall acquire certain rights and assets from Party A and Party B and otherwise shall be established and carry on business in the manner set out in this Contract.

Party A and Party B are entering into this Contract in order to establish the manner in which the Joint Venture is to be established and to set out the terms governing their relationship as Shareholders in the Joint Venture.

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Now, in accordance with the "Law of the People's Republic of China on Joint Venture using Chinese and Foreign Investment" and other relevant Chinese laws and regulations, the Parties, adhering to the principle of equality and mutual benefit and through friendly consultations, agree to jointly invest to set up a Joint Venture in [address], [country] in order to engage in the production and manufacturing of[products] in the People's Republic of China to be sold in the Territory [and abroad].

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Interpretation: definitions

Incorporation:

characteristics of the JV upon incorporation

activities upon incorporation (execution of the Ancillary Agreements)

Business scope of the JV

…

Total amount of investment and Registered CapitalThe Joint Venture shall have a total amount of investment of [___] USD (say: [________] only Unites States Dollars); the registered capital of the Joint Venture shall be [_______] USD (say: [______]only Unites States Dollars).

Within the term of its duration, the Joint Venture shall not reduce its registered capital. In case the Joint Venture incurs in heavy losses (including those losses caused by Force Majeure events) the Parties may agree to contribute further capital in the Joint Venture, inaccordance with the relevant laws and regulations.

The difference between the total investment of the Joint Ventureand its registered capital shall be funded from the following sources,as determined by the Board and approved, if required, by the Shareholders’ Meeting:

-loans to the J V by each of the Parties in an amount proportionate to each of the Parties' Percentage Interest at the time of lending;and/or

-grant or interest free loans from the European Community and/or other international financing institutions; and/or

-bank loans (either from Chinese or from foreign banks) to the Joint Venture.

Contribution of the PartiesThe investment by the Parties to the registered capital shall be

contributed according to the following proportions:Party A shall contribute [ ____ ] USD […], accounting for [ __ %] of the

registered capital;Party B shall contribute [ ______ ] USD […], accounting for [ __ %] of

the registered capital.

Forms of contributionParty A shall contribute to its share in the registered capital, in thefollowing forms:Machinery and equipment, inclusive of import duties and VAT (if any): [ ________ ] USD […];Know how and technology: [ ________ ] USD […];Cash: [ ________ ] USD […].

Party B shall contribute to its share in the registered capital, in thefollowing forms:Production facilities (land use rights): [ _____ ] USD […];Machinery and equipment: [ ________ ] USD […];

Cash: [ ________ ] USD […].

Schedule of capital contributionThe Parties shall contribute their share in the registered capital, according to the following schedule:[ __ %] of the total amount of the registered capital shall be contributed by the Parties within [ ________ ] ([ __ ]) months from the date of issuing of the Business License; [...]

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Increase of the registered capitalAny increase of the registered capital of the Joint Venture shall be approved by the Shareholders’ meeting and shall be submitted to the original examination and approval authority for approval. […]

Assignment of equitiesNeither Party shall sell, assign, pledge, mortgage or otherwise transfer all or part of its contribution to the registered capital of the Joint Venture unless the unanimous resolution of the [Board / Shareholders' Meeting] has been obtained, and subject to the receipt of all necessary governmental approvals including the approvals of the relevant Approval Authority. […]

ProfitsAfter paying taxes in accordance with the law and drawing various funds, the remaining profits may be distributed according to theproportion of each Party's equity in the registered capital.[…]It is understood that for the first three Fiscal Years, the Joint Venture shall not distribute the profits, if any, in order to finance the development and the production of Joint Venture. […]

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Responsibilities of the partiesResponsibilities of Party AParty A shall:provide its capital contribution in accordance with Article 4 of this Contract.assist the Joint Venture in purchasing the raw materials, not supplied by the local market, needed for the production; assist the Joint Venture in purchasing or leasing the equipment, materials, raw materials, articles for office use, […] as well as all other material to be purchased or leased abroad;assist the Joint Venture in recruiting foreign management and technical personnel, and other personnel in accordance with the needs of the Joint Venture;assist the Joint Venture, where necessary, in applying for loans and financing from foreign banks and/or financial institutions;assist the Joint Venture to sell its Products on the international markets;be responsible for handling all other matters entrusted to Party A by this Contract.

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Responsibilities of Party BParty B shall:provide its capital contribution in accordance with Article 4 ofthis Contract; purchase from the Joint Venture the Products according to the quantities specified in Article 6 hereof (and according to the price specifies in Article 6.1.4 hereof) and distribute them according to the Distributorship and Service Agreement;lease to the Joint Venture, by entering the Lease Contract, the premises needed by the Joint Venture for its Business;[…]assist the Joint Venture in handling the applications for approval, registration, issuance of the business license and the others matters concerning the establishment of the Joint Venture with the relevant Approval Authorities; […]

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Organizational setupThe Joint Venture shall establish a structure composed by (a) the Shareholders’ Meeting and (b) the Board as its administrative organs and the (a) General Manager and (b) the Deputy General Manager as its management organs.The powers, duties and any other matters related to the appointment of the members of the above mentioned administrative organs as well as the dispositions regarding the General Manager and management organization are addressed to in the Articles.Any violation of the dispositions of the Articles on such issues shall be considered as a violation of this Contract, to be dealt in

accordance with the dispositions of Article 15 hereof.

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Early terminationAny of the Parties may terminate this Contract prior to the expiration of its term by sending, ninety (90) days prior to the day the termination shall be final, a written notice to the other Parties (the “Termination Notice”), when any of the following conditions occurs:the Joint Venture incurs in heavy losses (including those losses caused by Force Majeure events) and it is impossible or too difficult to remedy the situation or the Parties did not reach an agreement on the way to remedy the situation;if any law, rule or regulation promulgated subsequent to the execution of this Contract has a material and adverse effect on either the Joint Venture or the Parties;[…]all or part of the Joint Venture assets are confiscated by any government authority;[…]The Parties may, at any time, through an unanimous declaration of the Shareholders’ Meeting, ratified by the Board of Directors, agree upon an early termination of this Contract.

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Breach of contract

In the event that a breach of contract committed by any of the Parties to this Contract results in the nonperformance of or inability to fully perform this Contract, the Articles or any of the Ancillary Agreements, the direct liabilities and losses arising from the breach of contract shall be borne by the Party in breach.

If any of the Parties commits a breach of any of the provisions of this Contract, or the Articles or any of the Ancillary Agreements (the "Defaulting Party"), the other Party may serve notice upon the Defaulting Party specifying such breach and requiring the Defaulting Party immediately to cease such breach and to make good within in thirty (30) days the results of such breach to the extent that such is possible. […]

Unless such default is cured within sixty (60) days following the serving of such notice, […], the Party serving such notice may give written notice to the Defaulting Party terminating this Contract, inwhich event this Contract shall terminate on the date specified in such notice. […]

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Force MajeureForce Majeure Event means any act occurrence or omission, as a direct result of which the Party relying on it is prevented from or delayed in performing any of its obligations (other than a payment obligation) under this Contract, and which is beyond the reasonable control of the Party, including but not limited to occurrence of weather or other forces of nature (earthquake, typhoon, flood, storms), war, riot, insurrection, embargo or other unavoidable accidents. Whenever aForce Majeure Event occurs, […](the “Affected Party”) must serve to the other Party, as soon as reasonably possible, a written notice […], containing full particulars of the Force Majeure Event, […] (the “Suspension Notice”). The obligations of the Affected Party are suspended, […] from the date the Affected Party gives a Suspension notice in respect of that Force Majeure Event until the cessation of the Force Majeure Event.

If a Force Majeure Event continues for a period of ninety (90) days after a Suspension Notice is given, the Parties shall jointly decide, according to the actual conditions, whether to terminate, to modify or to fulfill the obligations contained in this Contract.

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Dispute ResolutionIn the event of any dispute between the Parties arising in connection with this Contract (or any Ancillary Agreement […]) and the Articles, any of the Parties shall use all reasonable endeavors to resolve the matter on an amicable basis.If any Party serves formal written notice on the other that a material dispute of such a description has arisen and that the Parties are unable to friendly resolve the dispute within a period of thirty (30) days from the service of such notice, then the dispute shall be referred to and finally settled by arbitration under and in accordance with the Rules of Arbitration of […] by three (3) arbitrators appointed in accordance with those rules. The site of arbitration shall be [____]. English shall be the arbitration language. The arbitration award shall be final and binding upon each of the Parties and the Parties agree to be bound by the terms of the award and to act accordingly. The arbitration award shall be enforceable by any court with jurisdiction over the Party against whom the award has been rendered or wherever the assets of the Party are located. […]

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Governing law

This Contract shall be governed by and construed in accordance with the published or publicly available laws and regulations of [the People's Republic of China].

Where there are no published or publicly available Chinese laws governing a particular matter relating to the Contract, general international commercial practices should apply […]

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