joint venture

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본 사례는 한국의 XYZ사가 미국의 ABC사와 합작으로 한국내에서 신규 J/V를 설립하고자 하여 ABC가 작성한 초안으로서, 주로 XYZ사의 입장에서 검토한 것임.


THIS AGREEMENT made and entered into this day of by and between ABC CO., Ltd., (hereinafter referred to as"ABC"), a corporation organized and existing under the laws of the state of Delaware, USA having its principal office at OOOOOO, Chicago, Illinois 60614-4079, United states of America; and XYZ Co., Ltd(hereinafter referred to as "XYZ"), a company organized and existing under the laws of the Republic of Korea having its principal office at000000, Kyunggi-do,425-100, Republic of Korea.

WITNESSETH:

WHEREAS, ABC manufactures and sells inter aha plastic and die cast steels, forging die steels, and commercial open die foreigns ; and WHEREAS, ABC and XYZ desire to organize a Korean company to be jointly owned by ABC and XYZ to engage in the importation and sale of ABC steel products in Korea ;NOW, THEREFORE, for and in consideration of the premises, of the mutual promises and covenants contained herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by all parties, the parties hereby agree as follows :

GENERAL PROVISIONS

Section 1. definitions

(1) For the purpose of this Agreement:

(a) "Effective Date" shall mean the date when the last of the following shall occur :( i ) This Agreement and the Appendices hereto shall have been approved by the respective Boards of Directors of the Participants and executed : and( ii ) The approval of this Agreement and the Appendices hereto by the Korean Government or its delegate in form and substance satisfactory to both Participants.(b) "Joint Venture" shall mean the joint venture between ABC and XYZ and the new company organized in Korea pursuant to this Agreement.(c) "Participants" shall mean ABC and XYZ or their successors.(d) "Related company (or Companies)" shall mean when used in relation to either Participant, any company which at the relevant time: ( i ) Is controlled by that Participant;( ii ) controls that Participant; or( iii ) Is controlled by any company referred to In ( ii ) above. For the purposes of this definition, a company (including a Participant) shall be deemed to control another company (including another Participant) if, and only if, it owns directly or indirectly more than fifty percent (50% ) of the issued shares of stack giving a right to vote at general meetings, or has the right to receive more than fifty percent (50% ) of the distributable profits, ascertained in accordance with generally accepted accounting principles of that other company.

ESTABLISHMENT OF THE JOINT VENTURE COMPANY

Section 2. Formation of a company

(1) As soon as possible after the Effective Date of this Agreement the participants shall cause a stock company (chusik hoesa) to be lawfully organized under the laws of the Republic of Korea to be called "ABC XYZ, Ltd.," or "ABC Korea, Ltd.," The Participants agree that the word "ABC" will be deleted from the name of the Joint Venture if ABC so requests. The Participants agree to vote their shares accordingly.(2) The Joint Venture shall be organized and managed in accordance with the form of Articles of Incorporation attached hereto as APPENDIX A.(3) The authorized capital of the Joint Venture shall be shares of voting common stock with par value of Won per share, and shares of non-voting preferred stock with a par value of won per share.

Section 3. Capital subscriptions

(1) Upon the establishment of the Joint Venture, the Participants agree to subscribe to shares of capital stock as follows:(a) ABC: shares of voting common stock at Won per share (50% of the total issued shares of common stock) and shares of non-voting preferred stock at Won per share. (b) XYZ: shares of voting common stock at Won per share (50% of the total issued shares of common stock).(2) The above shares accepted and subscribed by ABC and XYZ shall be paid in cash to the Joint Venture.

전액 현금출자외 의미


(3) Except as otherwise provided in this Agreement, the Joint Venture may from time to time issue additional shares to the extent of the aforesaid authorized capital as its Board of Directors may determine, and such additional shares shall be accepted and subscribed by ABC and XYZ as the Participants may agree.(4) Except as otherwise provided in this Agreement, no new shares of the Joint Venture in excess of the originally authorized shares may be authorized except upon mutual written agreement of the Participants.

Section 4. Promoters

(1) Seven (7) individuals designated by XYZ shall serve as the promoters of the Joint Venture.(2) The promoters shall accept no more than one (1) share each by signing or adding their names and seals to the Articles of Incorporation.(3) The shares accepted by the individual promoters shall be transferred to and become part of XYZ's shares.

Section 5. Dissectors and management

(1) The management of the Joint Venture shall be the responsibility of its Board of Directors, Who shall be governed in their actions by the law and the Articles of Incorporation.(2) The Joint Venture shall initially have four (4) directors. ABC shall nominate two (2) directors and XYZ shall nominate two (2 ) directors. The Participants agree to cause their shares in the Joint Venture to be voted to elect the directors so nominated.

지분이 50:50의 동일 비율이고, 경영의사결정의 주체인 이사의수도 50:50인만픔 의사결정에 있어서의 deadlock(교착상태)에 대비한 Alternative의 강구가 필요함.


(3) In case the position of a director to the Joint Venture becomes vacant for any reason, the Participants agree to cause their shares to be voted to elect as director a person nominated by the Participant who nominated the director whose office is vacant.(4) The Board of Directors shall appoint a President of the Joint Venture from among the directors selected by XYZ and a chairman of the Board of Directors from among the directors selected by ABC.(5) The president and Chairman of the Board of Directors shall be Representative Directors of the Joint Venture.(6) The Board of Directors shall appoint a Manager of the Joint Venture and he shall have, subject to the control of the Board of Directors, general overall supervision of its business and affairs, including all matters relating to the operation of the business. The Manager shall be responsible for maximizing the profits of the Joint Venture consistent with growth objectives and other restrictions and authorizations as may be imposed from time to time by the Board of Directors.

당해 J/V에서 중요한 역할을 하게될 한사람의 Manager가 경영권이 50:50의 동일비율로 양분된 상황에서 제때에 임명될 수 있겠는가의 문제.


Section 6. Auditors, Independent Accountant And Records

(1) The Joint Venture shall have two (2) statutory auditors, one nominated by each of the Participants. The Participants agree to cause their shares to be voted to elect as the auditors the persons so nominated.(2) The Joint Venture shall have an independent accountant. For this purpose the Joint Venture shall retain a ·firm of Certified Public Accountants having offices in Korea selected by ABC.

경영에 직.간접 영향을 주게될 CPA를 ABC 단독으로 지명케 한 다는 것은 XYZ입장에서는 재고해 볼 필요성 있음.


(3) All books of accounts, vouchers and documents of the Joint Venture shall be available for inspection by the auditors of the Joint Venture, the independent accountant of the Joint Venture, and representatives of the Participants. The Joint Venture shall maintain its books and make reports in accordance with accounting standards generally accepted in Korea and, in the establishment of its accounts, shall seek the advice of the independent accountant.(4) The Joint Venture shall also keep such other books and records and shall provide such other information as shall be requested by for its accounting and tax purposes. The Participants or their agents shall have full access to the books and records of the Joint Venture at all reasonable times and shall have the right to make copies of or extracts from such books and records.(5) The Joint Venture's fiscal year shall begin on February 1 and end on January 31.

회계연도는 한국기업들이 통상적으로 답변확정하는 12월 결산으로 조정할 필요성.


OPERATIONS OF JOINT VENTURE

Section 7. Purpose; Agreements; Services

(1) Unless otherwise agreed to by the Participants, it Is the intention of the Participants that upon its formation the Joint Venture :(a) Shall be the exclusive buyer and seller of ABC's products in the Republic of Korea including those manufactured and sold by ABC and new products which may be introduced in the future;(b) Shall only handle ABC products and the product line manufactured by ABC, e.g.Plastic and die cast mold steels, forging die steels, and commercial open die forgings ;(c) may, upon the mutual consent of the Participants, market other products not manufactured by Fink1.(2) Immediately after the formation of the Joint Venture and the Joint Venture shall enter into the following agreements :(a) A Distributorship Agreement in the form attached hereto as Appendix B: and(b) An Agreement Concerning Use of Trademark in company Name in the form attached hereto as Appendix C.(3) XYZ shall furnish and make available to the Joint Venture such services as the Joint Venture may reasonably request and XYZ is able to provide including, without limitation, the following : (a) General office space, including appropriate furnishings and equipment ; (b) Telephone, telex, copying and duplicating equipment ;(c) Record keeping, bookkeeping and accounting services ; and(d) Such marketing support and employees of XYZ as may be necessary on a part-time basis to assist the Joint Venture in the orderly and efficient operation of its business.(4) All the services described in Section 7 (3) shall be provided by XYZ to the Joint Venture at arm's length rates, the reasonableness of such charges to be subject to review and approval by XYZ, In addition, the Joint Venture shall pay for all out-of-pocket incremental costs incurred by XYZ in connection with the provision of the services referred to In clause (b) of Section 7 (3) above.(5) XYZ's obligation to furnish and make available to the Joint Venture the services described in Section 7 (4) shall continue until such time as the Joint Venture is capable of performing such services independently or to arrange for their performance by a third party at reasonable and competitive prices, as determined by the Board of Directors of the Joint Venture.

Section 8. Protection of Confidential Information

(1) Each Participant agrees, during the life of this Agreement and after its termination, to keep, and to cause the Joint Venture to keep, strictly secret and confidential and not to disclose to any third party, except to the extent that disclosures to the Joint Venture may be required by this Agreement or by any of the agreements set forth in the Appendices hereto, any and all proprietary, technical, economic, financial, business relationship or marketing information acquired from the other Participant hereto(including information acquired during the period of negotiations preceding the execution hereof) or from the Joint Venture unless disclosure of such information is expressly permitted by this Agreement or the agreements set forth in the Appendices hereto or any other relevant agreement.(2) Each Participant agrees, during the life of this Agreement and after its termination, that it shall not use any information described in Section 8(1) obtained from the other Participant or from the Joint venture for any purpose whatsoever except in a manner expressly provided for in this Agreement, the agreements set forth in the Appendices hereto, or any other relevant agreement.

위 8(1) 및 8(2)에서의 비밀유지의무 및 사용금지의무는 계약종료이후에도 무한정으로 존속토록 할 것이 아니라 합리적 기간만 한정토록 할 필요가 있음. 예를 들자면 for three(3) years after its termination 등으로 그 기간을 한정할 수 있음.


(3) The obligations undertaken by the Participants hereto pursuant to Sections 8(1) and (2) shall not apply to any such information which :(a) at the time of acquisition or thereafter is in the public domain by publication or otherwise through no fault of the acquiring Participant; or(b) was in the possession of the acquiring participant prior to the time of acquisition: or(c) was acquired from a third party imposing no obligation of confidentiality.(4) The obligations of the Participants under Sections 8(1) and (2)(but subject to Section 8(3)) shall survive the termination of this Agreement.

Section 9. Financing And Dividend Policies

(1) The Board of Directors of the Joint Venture shall advise the Participants with respect to obtaining additional funds for the Joint venture. If the Participants agree that additional equity capital is necessary, then the Participants shall provide the necessary capital contributions in such aggregate amount as the Participants may agree. If the Participants agree that loans should be obtained by the Joint Venture, then the Participants shall cause the Joint Venture to use its best efforts to arrange for loans on the basis of its own credit, or, if necessary, on the credit of the Participants, in proportion to their stock ownership,and on the best available credit terms and conditions in such amounts as the Participants may agree.(2) Unless otherwise agreed in writing by the Participants, he Joint Venture shall declare and pay dividends as decided by the shareholders.

Section 10. Non-competition

(1) Neither of the Participants shall, directly or indirectly, compete with the Joint Venture in Korea in the business of the Joint Venture, nor shall either Participant, directly or indirectly, own,manage, operate, control, act as a consultant or advisor to, have any financial interest in, or otherwise be connected in any manner with any person, firm, or corporation which is engaged in Korea in any business conducted by or competitive with that of the Joint Venture. The foregoing shall not be deemed to prohibit the ownership by a participants of up t five percent(5%) of any class of securities which is publicly traded on a major stock exchange.(2) The Participants agree to refer to the Joint venture all sales inquiries for the products set forth in Section 7 (1) to be sold in Korea.

CHAPTER IV

TERMINATION

Section 11. Termination For Cause

(1) In the event of a material breach of this Agreement by any of the Participants, then this Agreement may be terminated by the complaining Participant after giving ninety (90) days'prior written notice to the other Participant specifying the reason for termination, such termination becoming effective at the end of the said ninety (90) day period unless the breach has been rectified by that time.(2) Any Participant has the right terminate this Agreement forthwith by giving written notice to the other Participant if such other Participant enters bankruptcy, composition, liquidation or reorganization proceedings, or if any Participant becomes insolvent.(3) Should the Participants at any time jointly decide to liquidate the Joint Venture, it is mutually agreed that :(a) The liquidation will be accomplished as expeditiously as possible in compliance with all of the requirements of law.(b) The liquidation will be accomplished in a manner designed to maximize the revenues realized by the Participants.(c) the proceeds of such liquidation will be shared In proportion to the shares owned by each Participant at that time after settlement of all of the debts or other obligations of the Joint Venture to third parties.(d) The Participants will each release the other from any further liability under this Agreement.(e) All licenses granted to the Joint Venture by any Participant shall terminate upon liquidation and all rights under or pursuant to such licenses shall completely revert to the granting Participant.

Section 12. Force Majeure

(1) No Participant is responsible to the other for nor:performance or delay in performance of the terms and conditions herein due to acts of God, acts of governments, riots, wars, strikes, accidents in transportation, or other causes beyond the control of said Participant. Provided, however, that the Participant so prevented from complying herewith shall promptly give notice thereof to the other Participant and shall continue to take all actions reasonably within its power to comply as fully as possible herewith.(2) An aggrieved Participant may elect to terminate this Agreement if the non-performance mentioned herein above continues for six(6) months or longer.

Section 13. Damages; Effect Of Termination

(1) In the event of breach or termination of this Agreement, neither Participant is discharged from any 오ntecedent liability to the other Participant, and all of its rights and remedies are preserved, except that neither Participant is liable for consequential or special damages,(2) Upon termination of this Agreement pursuant to Section 13, the Participants agree that :(a) They shall cause the Distributorship Agreement and the agreement Concerning Use of Trademark in Company Name with the Joint Venture to be terminated.(b) Neither Participant shall make use of any work, design, mark,slogan or legend owned by or associated with another Participant.(c) They shall cause the Joint Venture to discontinue use of, cancel and return all confidential information and all written materials and documents related thereto to.(d) They shall cause the Joint Venture to cease engaging in the business set forth in Section 7(1).(e) They shall take all steps necessary to secure the immediate change of the company name of the Joint Venture so that it does not contain the word "ABC," or any other names associated with ABC.(f) The Participants shall promptly convene an Extraordinary General Meeting of shareholders for the dissolution of the Joint Venture.

Section 14. Other Remedies

Nothing in this Agreement shall prevent a Participant from enforcing its provisions by such remedies as may be available in lieu of termination.

CHAPTER V

MISCELLANEOUS PROVISIONS

Section 15. First Right To Shares

(1) Either Participant may sell by private sale pursuant to a bona fide offer to purchase its entire interest in the Joint Venture to any third party which is reasonably acceptable to the remaining Participants, which is credit worthy, and which is not in direct competition with the Joint Venture; provided that: (a) The selling Participant shall have given written notice of such offer to the other Participant setting forth the name and address of the offer or, the purchase price, and the other terms and conditions of the offer, and the name and address of any other person, known to the selling Participant, on whose behalf the offer is made, and offering to sell to the other Participant its interest in the Joint Venture at the same prince and on the same terms and conditions set forth in such notice.(b) If, within thirty (30) days after receipt of the selling Participant's notice, the other Participant shall give notice to the selling Participant of its election to purchase such interest, the selling Participant shall sell, and the other Participant shall purchase, such interest upon the terms and conditions so offered within a period of one hundred (100) days from the receipt of the selling Participant's notice.(c) If the other Participant shall not elect to purchase such interest, the selling Participant shall be free to dispose of such interest to the person originally offering to purchase it substantially upon the terms and conditions of its original offer within one hundred (100) days of expiration of the option period provided above and if not so consummated, any subsequent sale shall be subject to the provisions of this Section.(2) Any sale of an interest in the Joint Venture to a person other than a Participant shall be effective only upon the execution and delivery by the purchaser and the selling Participant of an agreement reasonably satisfactory to the remaining Participant evidencing the agreement of such purchaser to become a Participant and to be bound by the provisions of this Agreement and to assume all of the liabilities and to perform all the obligations and duties of the Participant whose interest is sold, including the option to purchase.(3) Whenever a Participant's interest in the Joint Venture Is sold or transferred to a third party, all obligations hereunder of the selling Participant and corporations under common control of such Participant not specifically stated to survive termination hereof shall cease. However, any obligations which any of them shall have under or with respect to agreements ancillary hereto shall continue in full force and effect in accordance with the terms thereof.(4) When transfer of shares under this Section is subject to the approval of or the notification to the Korean Government and shall not become effective until such approval has been obtained, or such notification given, the period of time prescribed above ducting which the acceptance by the other shareholders or the sale or transfer to a third party is required to be made shall be extended to the time at which such government validation or approval is obtained or such notification is given.(5) If, under the then prevailing Korean law or government policy,acquisition by ABC of the interest of the other Participant is not permissible, the other Participant agree that it will not transfer any of its stock interest in the Joint Venture to a third party without the prior consent of ABC.(6) Either ABC or XYZ may sell or transfer all or part of its shares in the Joint Venture to a Related Company or to a successor to all or substantially all of its business and properties byway of a merger, consolidation, amalgamation or sale of assets,free of the foregoing requirements, provided ,the transferee agrees in writing to be governed by the provisions of this Agreement. The transferee shall be free further to transfer all or part of the shares so acquired to one of its Related Companies, subject to the same condition.

Section 16. Foreign Corrupt Practices Act

No actions taken by the Participants or by the Joint Venture or any agent, consultant, representative or employee of the foregoing in connection with the business of the Joint Venture shall cause the Joint Venture or any Participant to violate any applicable law. Without limiting the generality of the foregoing, the Participants expressly acknowledge their awareness that this Agreement and the performance by the Participants of their respective obligations contemplated hereby, might in some circumstances and upon certain findings of fact give rise to civil and criminal liability on the part of and its officers, directors, employees and agents under the Foreign Corrupt Practices Act of 1977 of the United States of America (dealing with certain payments to obtain business). Therefore, it is the express intention of the Participants that the Joint Venture shall not take any action or refrain from taking any action, to the extent that any such action or inaction would cause to be in violation of or presumed in to be in violation of the provisions of such law.

Section 17. Government Approvals

(1) This Agreement is subject to the prior approval of the Korean Government which may be required for this Agreement, the acquisition of shares by hereunder, and the Appendices hereto. The Participants shall not enter into the transactions contemplated until such approval has been obtained.(2) XYZ shall prepare and file the necessary applications to the Korean Government under the prior paragraph within a reasonable time from the date of the execution of this Agreement. ABC shall cooperate with and assist XYZ by furnishing information needed therefor.

Section 18. Waivers

Waiver by either Participant of a breach or default in any of the provisions of this Agreement by the other Participant shall not be construed as a waiver of any succeeding breach or default. No failure of ABC to exercise any right given to it hereunder, or to insist upon strict compliance by XYZ with any obligation hereunder, and no custom or practice of the Participants at variance with the terms hereof shall constitute a waiver of ABC's rights to demand exact compliance with the terms hereof.

Section 19. Disclaimer Of Agency

This Agreement shall not constitute either Participant the legal representative or agent of another, nor shall either Participant have the right or authority to assume, create, or incur any liability or any obligation for any kind, express or implied, against or in the name of or on behalf of the other Participant.

Section 20. Assignment

A Participant shall not, without the written consent of the other Participant, which consent shall not be unreasonably withheld, assign or transfer this Agreement or any right or obligation under it, provided,however, that a Participant may make any such assignment or transfer to any Related Company of such Participant provided that the Participant remains responsible for the performance by the Related Company of any obligation assigned or transferred to it.

Section 21. Arbitration

All disputes arising in connection with this Agreement or any modification or extension thereof shall be finally settled under the Rules of the American Arbitration Association in effect at that time by one arbitrator appointed by the Participants or, failing agreement within one month of the demand for arbitration, by the American Arbitration Association. The arbitrator so appointed shall hear and dispose of any dispute in such manner as he, in his discretion, shall determine, including a determination to terminate this Agreement and liquidate and dissolve the Joint Venture, but in so doing he shall be required to receive the submissions of the Participants with respect to the said difference or dispute between them. The arbitration proceedings shall be conducted in the English language and shall take place in Chicago, Illinois, U.S.A,The arbitrator shall base his award with respect to the matter before him on the contents of this Agreement and on the provisions of the applicable law as herein provided. The decision of the arbitrator shall be rendered in writing with all reasonable expedition and shall be final and binding upon the parties hereto. Judgment upon the arbitration award rendered may be entered in any court having jurisdiction, or application may be made to any such court for judicial acceptance of the award and an order of enforcement, as the case may be. At any time prior to the rendering of the arbitration award, any Participant may apply to any court for provisional relief.

당해 J/V가 한국에서 설립되고 운영되는 만큼, XYZ의 입장에서는 중재의 3요소를 모두 한국의 것으로 주장해 보되, 불가능한 경우는 최소한도 한미상사 중재협정 수준으로라도 합의하되 중재장소만큼은 미리 규정할 필요있음. 중재장소의 구체적 지정이 어려울 경우는 피고지 국가의 수도 등으로 표시할 수도 있을 것임.



Section 22. Notice

Notice to be furnished under or with respect to this Agreement shall be deemed given if made in writing and sent by registered airmail,postage prepaid, return receipt requested, or if given by cable, telex or telecopy Promptly confirmed by a copy mailed as aforesaid to the Participant to be notified at the following address :

To XYZ:

To ABC:

or to such other address as the Participant shall specify in writing.Section 23. Governing Law And Language

(1) This Agreement shall be governed and interpreted under the law of the State of Illinois, U.S.A. 당해 J/V의 설립, 운용 등이 모두 한국에서 진행되는 만큼 한국법을 준거법으로 하는 것이 보다 실체적 타당성에 근접할 수 있을 것임.



(2) The English language version of this Agreement shall be controlling in all Instances.

Section 24. Separability

If any term, clause or provision of this Agreement shall be judged to be invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be replaced by a legal, valid and enforceable term, clause or provision which comes closest to the economic result intended by the Participants with the term, clause or provision to be replaced.

Section 25. Miscellaneous

(1) The Participants agree to enter into and execute any and all such further agreements, documents and the like as may be necessary or beneficial to carry out the purpose of the Joint Venture.(2) Any matter not provided for in this Agreement will be dealt with in the spirit of mutual confidence and the good will existing between the Participants.(3) Nothing in this Agreement, expressed or implied, is intended or shall be construed to confer upon, or give to, any person other than the Participants hereto any right, remedy or claim under or by reason of this Agreement or any covenant, condition or agreement hereof.

CHAPTER Ⅵ

TERM AND EFFECTIVENESS

Section 26. Duration

This Agreement will continue in force from the Effective Date for as long as the Joint Venture is in existence and ABC and XYZ or their Related Companies are shareholders thereof.

Section 27. Effective Date

(1) This Agreement shall become effective on the Effective Date as defined in section 1(1) (a).(2) Any Participant may withdraw from the Proposed collaboration in the event that the approval of the Korean Government imposes conditions which would significantly alter the Joint Venture from the intent of the Participants, or would restrict the activities planned through the Joint venture to an extent considered unacceptable by either of the Participants, or delays the implementation of this Agreement and the Appendices hereto by more than ninety (90) days.IN WITNESS WHEREOF, the Participants hereto have caused this Agreement to be executed by their duly authorized representatives.



ABC Co., LTD

By

XYZ Co., LTD

By

이렇게 되어 있습니다. 번역은 생략합니다.