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2009年10月04日

(2009-10-04 12:33:34)
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杂谈

unit 3
董事会
3.1.1 法规条文

1. 合营企业设董事会,其人数组成由合营各方协商,在合同、章程中确定,并由合营各方委派和撤换。董事长和副董事长由合营各方协商确定或由董事会选举产生。中外合营者的一方担任董事长的,由他方担任副董事长。董事会根据平等互利的原则,决定合营企业的重大问题。
1. A joint venture shall set up a board of directors, the member and composition of which shall be specified in the contract and articles of association by the parties to the joint venture through consultation. The directors shall be appointed and replaced by the parties. Chairman or vice-chairman shall be determined by the parties to the joint venture through consultation or elected by the board of directors. Where the Chinese party or the foreign party assumes the office of chairman, the other party shall be the vice-chairman. The board of directors shall decide important matters concerning the joint venture on the principles of equality and mutual benefit.

2. 董事会的职权是按合营企业章程规定,讨论决定合营企业的一切重大问题:企业发展规划、生产经营活动方案、收支预算、利润分配、劳动工资计划、停业,以及总经理、副总经理、总工程师、总会计师、审计师的任命或聘请及其职权和待遇等。
2. As its functions and powers, the board of directors shall, in accordance with the provisions of the articles of association of the joint venture, discuss and decide all important matters concerning the joint venture, namely, the enterprise expansion plan, plans for production and business activities, budget for revenues and expenditures, profit distribution, plans concerning labor and wages and winding up, as well as the appointment or engagement of the general manager, deputy general manager, chief engineer, chief accountant, and auditors and their functions and powers, and salaries and benefits.

3. 董事会是合营企业的最高权力机构,决定合营企业的一切重大问题。
3. The board of directors shall be the highest authority of a joint venture. It shall decide all major matters concerning the joint venture.

4. 董事会成员不得少于3人。董事名额的分配由合营各方参照出资比例协商确定。
董事的任期为4年,经合营各方继续委派可以连任。
4. The board of the directors shall consist of no less than three members. The number of directors to be appointed by each party shall be determined through consultation by the parties to the joint venture with reference to the proportion of their respective capital contribution.
The term of office for each director shall be four years. Such term shall be renewed when a director is re-appointed by the original appointing party to the joint venture.

5. 董事会会议每年至少召开一次,由董事长负责召集并主持。董事长不能召集会议时,由董事长委托副董事长或其他董事负责召集并主持董事会会议。经1/3以上董事提议,可以由董事长召开董事会临时会议。
董事会会议应当由2/3以上董事出席方能举行。董事不能出席的,可以出具委托书委托他人代表其出席和表决。
董事会会议一般应当在合营企业法定地址所在地举行。
5. The board meeting shall be convened at least once a year, which shall be called and presided over by the chairman of the board. If the chairman is unable to call the meeting, he shall appoint the vice-chairman or another director the power to call and preside over the meeting. The chairman may convene an interim meeting upon a proposal made by more than one third of the total number of directors.
The board meeting shall be held only when over two-third of the directors are present. If a director is unable to attend the meeting, he may issue a power of attorney to appoint a proxy to represent him and vote on his behalf.
The board meeting shall generally be held at the location of the joint venture’s legal address.

6. 下列事项由出席董事会会议的董事一致通过方可做出决议:
(1)合营企业章程的修改;
(2)合营企业的终止、解散;
(3)合营企业注册资本的增加、减少;
(4)合营企业的合并、分立。
其他事项,可以根据合营企业章程载明的议事规则做出决议。
6. Resolutions on the following matters shall be made only after they have been unanimously approved by the directors present at the board meeting:
(1) amendment to the articles of association;
(2) termination and dissolution of the joint venture;
(3) increase in and reduction of the joint venture’s registered capital; and
(4) merger or division of the joint venture.
Resolutions on other matters may be made in accordance with the rules of procedure stated in the articles of association of the joint venture.

7. 董事长是合营企业的法定代表人。董事长不能履行职责时,应当授权副董事长或者其他董事代表合营企业。
7. The chairman of the board is the legal representative of the joint venture. When the chairman is unable to perform his duties, he shall authorize the vice-chairman or another director to represent the joint venture.

3.2.1 合同条款

1. 合营公司营业执照颁发之日,即为合营公司和董事会成立之时。
1. The day of the issuance of the JV Company’s business license shall be date of the establishment of the JV Company and the board of directors.

2. 董事会由5名董事组成,其中3名董事由甲方委派,2名董事由乙方委派。. 董事长由甲方委派。董事长和其他董事的任期为3年,经委派方再次委派可连任。
董事会席位出现空缺时,原委派方应立即委派继任董事。任一方均可再随时委派一名新董事(包括董事长)。委派新董事、董事长或副董事长时,委派方应提前7日通知董事会及另一方。
2. The board of directors shall consist of 5 directors, of whom three (3) shall be appointed by Party A and two (2) shall be appointed by Party BThe chairman of the board shall be appointed by Party A. The term of office of the chairman and other directors shall be three (3) years, and they may serve consecutive terms when they are re-appointed by the original appointing Party.
When a vacancy arises on the board of directors, the original appointing Party shall promptly appoint a successor. Any Party may at any time appoint a new director (including the chairman of the board). When a new director, chairman or vice-chairman is appointed, the appointing party shall notify the board of directors and the other party seven (7) days in advance.

3. 董事长是合营公司的法定代表人。董事长负责召集和主持董事会会议。未经董事会事先以决议的形式书面授权,董事长无权单方面采取对合营公司或董事会有约束力的行动。董事长因故不能履行其职务时,应指派另一位董事暂时履行董事长职务及代表合营公司。
3. The chairman of the board is the legal representative of the JV Company. He shall be responsible for calling and presiding over the board meeting. Without the prior written authorization by the board of directors in the form of a resolution, the chairman shall have no right to take any action that is binding on the JV Company or the board of directors. Should the chairman be unable to perform his duties, he shall appoint another director to perform the duties of the chairman and represent the JV Company for the time being.

4. 董事会会议每年至少召开一次。董事长应在董事会开会前14天向每一位董事发出书面会议通知,说明会议的议程、时间和地点。董事长发出的会议通知上载明的开会日期之前,每位董事可随时经提前至少5天向董事长发出通知,请求增加在该次会议上讨论的事项。董事长在收到请求后,应立即向每一位董事发出经过修改的会议通知。除非经全体董事一致批准,董事会不得在董事会会议上就会议通知未列明的事项作出任何决议。
4. The board meeting shall be convened at least once a year. The chairman of the board shall give each director a written notice fourteen (14) days prior to the date of the board meeting, stating the agenda, time and place of the meeting. Each director may at any time prior to the date of a meeting specified in the notice of meeting issued by the chairman, by giving at least five (5) days’ notice to the chairman, request for additional matters to be discussed at such meeting. The chairman of the board shall forthwith distribute a revised notice of meeting to each of the directors following receipt of any such request. The board of directors may not at any meeting adopt any resolutions on subjects not specified in the notice of the meeting unless approved by all the directors.

5. 董事因故不能出席董事会会议,可以书面授权委托代理人出席董事会。如届时未出席也未委托代理人出席,则作为弃权。
出席董事会会议的法定人数为全体董事的2/3,不够2/3人数时,其通过的决议无效。
5. Where the director is unable to attend a board meeting for any reason, he may appoint a proxy by a power of attorney to attend the meeting on his behalf. If the director or his proxy fails to attend the duly convened board meeting, such director shall be deemed to have abstained form voting.
The quorum of the board meeting shall be two-thirds of the total number of directors. Resolutions passed by a board meeting attended by less than two-thirds of the directors shall be invalid.

6. 董事会会议应由总经理办公室用中文和英文作详细记录,并在会议结束后14日内送交每位董事,由出席董事会会议的各位董事签字确认。会议记录应全面真实地记录与会董事或其代理人对要解决的问题所发表的意见,董事或其代理人的反对意见也应一并记录在案。任何董事不得以反对董事会会议通过的决议为由拒绝在会议记录上签字。经董事签字的董事会会议记录,是董事会会议讨论和表决的事项的真实反映,由总经理办公室保存并付诸实施。该等会议记录的复印件应立即交董事长(或其出席会议的代理人)签字,并分发给各位董事。如果会议的中文记录与英文记录不一致,则应以中文记录为准。
6. Detailed minutes of the board meeting shall be prepared in Chinese and English by the General Manager’s office and shall be delivered to each director within fourteen (14) days of the conclusion of the meeting to be signed and confirmed by each of the directors who attended the board meeting. The minutes of the board meeting shall actually fully and truly record the opinions of the directors or their proxies on the matters being resolved, and any objection raised by any director or his proxy shall also be recorded in the minutes. No director may refuse to sign the minutes of the board meeting on the ground that he objects to any resolution adopted at the board meeting. The minutes of the board meeting that are signed by the directors shall be the true record of the matters discussed and voted on at the board meeting, and shall be kept and complemented by the General Manager’s office. Photocopies thereof shall be promptly signed by the chairman (or his proxy attended at the time) and distributed to each director. In case of any discrepancy between the Chinese and English versions, the minutes of the meeting prepared in Chinese shall prevail.

7. 如果全体董事书面同意,董事会可以不召开会议而采取行动。该等书面同意应记录在案,并具有有正式召开的董事会会议的一种表决相同的效力。
7. An action may be taken by the board of directors without the convening of a board meeting if all the members of the board of directors consent in writing to the action. Such written consent shall be placed on record, and shall have the same force and effect as a unanimous affirmative vote taken at a duly convened board meeting.

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