exv4w4



 


Exhibit 4.4



Translated from Chinese




Capital Increase Agreement




Shenyang Brilliance JinBei Automobile Co. Ltd.

Capital Increase Agreement




By and Between




Brilliance China Automotive Holdings Limited




And




Shenyang JinBei Automotive Company Limited




Dated: January 10, 2003



1







 


Translated from Chinese





Capital Increase Agreement



This Capital Increase Agreement with respect to Shenyang Brilliance JinBei
Automobile Co. Ltd.(originally named as Shenyang JinBei Passenger Vehicle
Manufacturing Co. Ltd.) is entered into on      , 2003 by and between the
following parties:




	 	 	 
	Party A:	 	
Brilliance China Automotive Holdings Limited (abbreviated as CBA)
	Party B:	 	
Shenyang JinBei Automotive Company Limited



Whereas:





	 	1.	 	Party A and Party B to this Agreement have previously singed a
Sino-foreign Joint Venture Contract for Shenyang JinBei Passenger
Vehicle Manufacturing Co. Ltd. which has become effective;
	 
	 	2.	 	In accordance with the said Joint Venture Contract, Party A and
Party B to this Agreement established a Sino-foreign joint venture,
Shenyang Brilliance JinBei Automotive Co., Ltd. on      , 19     , and
have completed their respective contribution obligations;
	 
	 	3.	 	The original registered capital and the total investment of joint
venture Shenyang Brilliance JinBei Automobile Co. Ltd. is not suited to
the current status and development of the joint venture;
	 
	 	4.	 	The Board of Directors of the joint venture has recommended to
Party A and Party B an increase of the capital;
	 
	 	5.	 	The Board of Directors or the Board of Shareholders of Party A and
Party B to this Agreement have both approved the proposal of capital
increase for Shenyang Brilliance JinBei Automotive Co., Ltd..



To facilitate the operation and development of Shenyang Brilliance JinBei
Automotive Co., Ltd., according to the Company Law of the People’s Republic
of China and other relevant laws and regulations, Party A and Party B,
through friendly consultation, reach the following agreement on capital
increase to be honored and performed by the Parties.




Article One




Parties to Increase the Capital




	 	 	 
	1.1	 	
The Parties to increase the capital under this Agreement are:
	 	 	
Party A: Brilliance China Automotive Holdings Limited (abbreviated as CBA)
	 	 	
Address: Bermuda
	 	 	
Legal Representative:Wu Xiao’an



2







 


Translated from Chinese



Capital Increase Agreement




	 
	Party B: Shenyang JinBei Automotive Company Limited
	Address: No. 38, Wangliutang Road, Liaohe District, Shenyang, Liaoning
Province
	Legal Representative: He Guohua




Article Two




Ratio of Capital Increase





	2.1	 	Party A and Party B both agree to increase the capital of Shenyang
Brilliance JinBei Automotive Co., Ltd. according to the ratio of their
respective shareholding percentage of 51% to 49%.




Article Three




Amount of Capital Increase





	3.1	 	Party A and Party B both agree to increase the registered capital of
Shenyang Brilliance JinBei Automotive Co., Ltd. from USD171.16 million to
444.16 million, with an increment of USD 273 million.
	 
	3.2	 	According to the shareholding ratio of 51% to 49%, Party A shall make an
additional capital contribution of USD 139.23 million, and Party B shall
make an additional capital contribution of USD 133.77 million. Upon the
completion of the capital increase, Party A’s shareholding percentage
remains 51% and Party B’s shareholding 49%.




Article Four




Form of Capital Increase





	4.1	 	Party A to this Capital Increase Agreement shall contribute USD 139.23
million to the increment of the capital in cash. If Party A is to
contribute in RMB cash, the contribution shall be converted into US
dollars according to the foreign exchange rate published by the People’s
Bank of China on the date of the payment of the contribution.
	 
	4.2	 	Party B to this Capital Increase Agreement shall contribute to the
increment of the capital in the form of the following assets: 1) the
development and manufacturing technology of the components for M1
three-carriage cars and multi-purpose vehicles developed and designed by
an Italian design company, evaluated at RMB 820 million; 2) China
Automobile Industry Toyota JinBei Technician Training



3







 


Translated from Chinese




Capital Increase Agreement





	 	 	Center, evaluated at RMB 115.97; 3) the short fall shall be made up
with cash or other assets after evaluation. If the value of the
assets determined in the evaluation or the cash contribution are in
RMB, such amounts shall be converted into US dollars according to the
foreign exchange rate published by the People’s Bank of China on the
date of the payment of the contribution.




Article Five




Timing of Capital Increase





	5.1	 	Party A and Party B shall complete their respective contribution
obligations in accordance with the provisions in this Agreement.
	 
	5.2	 	Party A shall contribute in cash and shall remit the contribution in full
amount into the bank account of joint venture Shenyang Brilliance JinBei
Automotive Co., Ltd. within 30 days of the Effective Date of this
Agreement. Party B shall 1) in the case of contribution of the
development and manufacturing technology of the components for M1
three-carriage cars and multi-purpose vehicles developed and designed by
an Italian design company, deliver all material and rights related to such
proprietary technology to Shenyang Brilliance JinBei Automotive Co., Ltd.
within 90 days of the Effective Date of this Agreement; 2) in the case of
contribution of China Automobile Industry Toyota JinBei Technician
Training Center, assist Shenyang Brilliance JinBei Automotive Co., Ltd. in
undertaking formalities of changing registration with industry and
commerce administration authorities to transfer such asset to Shenyang
Brilliance JinBei Automotive Co., Ltd.; 3) in the case of contribution of
cash or other assets, remit such cash to the bank account of or transfer
such assets under the name of Shenyang Brilliance JinBei Automotive Co.,
Ltd. within one year of the Effective Date of this Agreement.




Article Six




Default





	6.1	 	If this Agreement and its annexes can not be performed or fully and
appropriately performed due to a Party’s misconduct, the Party of
misconduct shall be responsible for the default; if the misconduct is
committed by both Parties, the Parties shall be responsible for their
respective default based on the actual circumstances.




Article Seven




Force Majeure





	7.1	 	If the performance of this Agreement is directly affected by or if this
Agreement fails to be performed according to the agreed conditions due to
earthquake,



4







 


Translated from Chinese




Capital Increase Agreement





	 	 	typhoon, flood, fire, war and other force majeures which are
unforeseeable and the occurrence and result of which are unpreventable
or inevitable, the Party which encounters such force majeure shall
inform the other Party promptly by telegram, and shall provide within
15 days details of such force majeure and effective documents
evidencing the cause of the failure or partial failure of the
performance of this Agreement, or the requirement of extending the
performance. Based on in seriousness of the effect that the force
majeure has on the performance of this Agreement, the Parties shall
consult with each other to determine whether this Agreement shall be
terminated, or part of the obligations to perform this Agreement shall
be waived, or the performance shall be extended.




Article Eight




Applicable Law





	8.1	 	The execution, force, interpretation, performance of and settlement of
disputes under this Agreement shall be governed by the laws of the
People’s Republic of China.




Article Nine




Settlement of Disputes





	9.1	 	The Parties to this Agreement shall first seek to settle any disputes
resulting from or in connection with this Agreement through friendly
consultation, failing which, any Party may submit the dispute to a
competent people’s court for legal proceedings or to China International
Economic and Trade Arbitration Commission for arbitration.
	 
	9.2	 	During the course of legal proceedings or arbitration, except for the
matters in dispute which is under legal proceedings or arbitral
proceedings, this Agreement shall continued to be performed.




Article Ten




Effectiveness of this Agreement





	10.1	 	Given that the capital increase of Shenyang Brilliance JinBei Automotive
Co., Ltd. has been approved by the Ministry of Foreign Trade and Economic
Cooperation, this Agreement shall become effective as of the date on which
the Parties sign and affix their company seals to this Agreement.
	 
	10.2	 	After the effectiveness of this Agreement, if there is a conflict between
the corresponding provisions in the original joint venture contract
between Party A and Party B and the provisions in this Agreement, the
provisions of this



5







 


Translated from Chinese




Capital Increase Agreement





	 	 	Agreement shall prevail. Party A and Party B may sign a new joint
venture contract if necessary.




Article Eleven




Language





	11.1	 	This Agreement is written in Chinese, and the Chinese version shall
prevail.




Article Twelve




Miscellaneous





	12.1	 	The asset evaluation and approval documents in connection with this
Agreement shall be attached to this Agreement as annexes.
	 
	12.2	 	The amendments to this Agreement and its annexes shall be agreed to by
Party A and Party B in writing in a separate agreement.
	 
	12.3	 	This Agreement is signed in 4 originals. Party A and Party B shall each
retain one original, Shenyang Brilliance JinBei Automotive Co., Ltd. shall
keep one original, and the Administration of Industry and Commerce shall
keep one original for file.




	 	 	 
	Party A: Brilliance China Automotive

Holdings Limited	 	
Party B: Shenyang JinBei Automotive

Company Limited
	 	 	 
	By: /s/ Wu Xiao An	 	
By: /s/ He Guo Hua
	
	 	


	Legal Representative or Authorized

Representative	 	
Legal Representative or Authorized

Representative





6