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MINISTRY OF
CONSTRUCTION
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 866/QD-BXD
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Hanoi, August 21,
2017
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DECISION
APPROVAL
OF CRITERIA AND PROCEDURES FOR SELECTION OF, METHODS OF SALE OF SHARES TO,
STRATEGIC INVESTORS IN THE PROCESS OF CARRYING OUT THE PLAN FOR EQUITIZATION OF
PARENT COMPANY - VIETNAM URBAN AND INDUSTRIAL ZONE DEVELOPMENT INVESTMENT
CORPORATION (IDICO)
MINISTER OF CONSTRUCTION
Pursuant to the Government's Decree No.
81/2017/ND-CP dated July 17, 2017, defining the functions, tasks, powers and
organizational structure of the Ministry of Construction;
Pursuant to the Government’s Decree No.
59/2011/ND-CP dated July 18, 2011 on transformation of wholly state-owned
enterprises into joint stock companies; the Government’s Decree No.
189/2013/ND-CP dated November 20, 2013 and the Government’s Decree No.
116/2015/ND-CP dated November 11, 2015 on amendments or supplements to the
Decree No. 59/2011/ND-CP dated July 18, 20122 on transformation of wholly
state-owned enterprises into joint stock companies;
In compliance with the Decision No.
58/2016/QD-TTg dated December 28, 2016 on criteria for classification of state-owned
enterprises, state-invested enterprises and the list of state enterprises
subject to the reorganization requirement for the period of 2016 – 2020;
Pursuant to the Prime Minister’s Decision No.
707/QD-TTg dated May 25, 2017 on approval of the program “Restructuring of
state enterprises with particular attention paid to state-owned economic groups
and corporations for the 2016 - 2020 period”;
Pursuant to the Prime Minister’s Decision No.
776/QD-TTg dated June 2, 2017 on approval of the Plan for equitization and
transformation into the joint stock parent company - Vietnam Urban and
Industrial Zone Development Investment Corporation and the Document No.
7676/VPCP-DMDN dated July 21, 2017 of the Government’s Office on consent from
the Deputy Prime Minister Vuong Dinh Hue to use of IDICO valuation results;
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Pursuant to the Circular No. 196/2011/TT-BTC
dated December 26, 20111 of the Minister of Finance providing instructions on
the initial offering of shares and management and use of revenues earned from
equitization of wholly state-owned enterprises transformed into joint stock
companies and the Circular No. 115/2016/TT-BTC dated June 30, 2016 of the
Minister of Finance on amendments and supplements to the Circular No.
196/2011/TT-BTC dated December 26, 2011;
Pursuant to the Decision No. 551/QD-BXD dated
May 20, 2014 of the Minister of Construction on establishment of the Steering
Committee on Equitization of Parent Company - Vietnam Urban and Industrial Zone
Development Investment Corporation; Decision No. 416/QD-BXD dated April 14,
2015 and Decision No. 1149/QD-BXD dated October 12, 2015 of the Minister of
Construction on change of members of the Steering Committee on Equitization;
In the light of the Request Form No. 474/TTr-TCT
dated July 13, 2017 of Vietnam Urban and Industrial Zone Development Investment
Corporation submitted to the Ministry of Construction to seek its approval of
the Information Release, starting price and criteria for selection of strategic
investors, auctioneers, financial intermediaries and members participating in
the Board of Auction to sell shares for carrying out equitization of the Parent
Company – IDICO;
Pursuant to the Report dated August 15, 2017 of
the Steering Committee on Equitization of the Parent Company – IDICO;
Upon the request of the Steering Committee on
Equitization of the Parent Company – IDICO and the Director of the Business
Administration Department,
HEREBY DECIDES
Article 1. Approval of criteria and procedures for selection of,
methods of sale of shares to, strategic investors in the process of carrying
out the plan for equitization of the Parent Company - Vietnam Urban and
Industrial Zone Development Investment Corporation (IDICO) with the following
subject matters:
1. Criteria for selection of strategic investors
1.1. General criteria
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- Make written commitments not to transfer
purchased shares within at least 10 (ten) years from the date on which the
joint stock company is granted the certificate of initial registration of
operations of enterprise under the Corporate Law. In special cases where these
shares need to be transferred before such prescribed duration, the transfer
approval decision issued in a shareholders' general meeting attended by
shareholders representing at least sixty five percent (65%) of voting shares (a
shareholders' general meeting held in a form of collection of written opinions
from shareholders is not accepted) must be sought;
- Prove their effective past performance in one
(01) of three (03) following sectors: (1) investment in technical
infrastructure for industrial zones and transport infrastructure; (2)
investment in housing and urban development, and construction; (3) electricity
generation and business;
- Do not engage in conflicts of interest with
IDICO’s developmental strategy;
- Prove their financial capabilities to purchase
shares which are at least equivalent to the number of contributed capital as
specified in their registration applications for admission as the corporation’s
strategic investors;
- Submit their business proposals after
equitization.
- Give no preferential treatment to any credit
institutions, banks, financial investment organizations, limited liability
companies and shareholding companies in which the State makes capital
participation.
1.2. Specific criteria: In order to become IDICO’s
strategic investors, both domestic and foreign investors must be qualified and
conform to the following criteria:
- Have full legal personality as provided by laws;
- Operate in main sectors and industries the same
as one (01) out of three (03) core business sectors or industries of
IDICO;
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- The minimum consecutive business timelength
assessed till end of 2016 must be 05 years;
- Their financial statements made in the most
recent three years (2014, 2015 and 2016) must indicate that they have
sufficient financial resources to purchase at least 15% of the joint stock
company’s charter capital (the starting price approved by an authorized entity
will serve as a basis for calculation). Each financial statement
must be audited by one of chartered auditing companies operating within the
territory of Vietnam that are accredited by the Ministry of Finance and ranked
as one of top 10 auditing companies according to the most recent report of
Vietnam Association of Certified Public Accountants (VACPA) that remains valid,
and must indicate that the applicant for admission as a strategic investor
meets the following regulatory requirements:
+ Required minimum total asset must be VND 2,500
billion (or in case of foreign investors, such total asset must be USD 115.0
million) at the end of the fiscal year of 2016;
+ Legal minimum equity must be 1,500 billion dong
(or in case of foreign investors, such equity must be USD 68.0 million) in the
fiscal year of 2016;
+ Required minimum profit must account for 5% of
the revenue generated in the most three years before applying for admission as
strategic investors of IDICO;
+ Financial situations: At the submission date,
none of overdue debts and accrued losses or bad debts is reported, and the
applicant for becoming a strategic investor who submits the financial statement
is not in breach of laws;
+ Such financial statement must provide evidence
that the applicant for admission as a strategic investor has sufficient capital
available for purchase of shares stated in the application (except its capital
already used for investment activities) or holds bank guarantees or account
freezing notices issued by commercial banks or credit institutions currently
operating within Vietnam where the applicant investor opens its account (the
minimum validity periods of these documents must be 6 months).
- A strategic investor must give a sum equaling 20%
of value of shares that it intends to purchase as a deposit calculated at the
starting price already approved by an authorized entity (any applicant investor
refuses to give deposit shall be disqualified). In case of giving up its right
to purchase shares, that strategic investor shall not be refunded its deposit;
- The applicant investor must not be a subsidiary
or a company in which IDICO has made its equity participation.
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- Ensure IDICO’s stable growth is upheld and the
approved growth strategy is continued to be carried out till 2020;
- Continue to maintain IDICO’s main sectors,
industries and brand after equitization within at least 10 years from the date
of IDICO's official transformation into a joint stock company;
- Continue to re-employ all staff members as
prescribed in the equitization plan approved by the Prime Minister within at
least 5 years and commit to providing re-training for the existing staff to
meet job requirements;
- Respect all activities of political or
socio-political unions or associations inside IDICO as provided in Article 6 of
the Corporate Law in force.
b) Apart from the abovementioned criteria, if the
applicant for admission as IDICO’s strategic investor is a foreign investor, it
must hold an account that is opened at one of the payment service providers
currently operating within the territory of Vietnam and complying with
Vietnamese laws, and through which their activities related to purchase of
shares must be carried out; must keep and show the written authorization (e.g.
authorization agreement, entrustment agreement and investor appointment
agreement) if they authorize an agent in Vietnam to act on their behalf to
purchase shares.
2. Objectives, amount, percentage of shares to be
sold, offering methods, processes and procedures for selection of a strategic
investor.
2.1. Objectives, amount and percentage of shares to
be sold to a strategic investor
- Objectives of offering of shares are to an
investor who is competent, experienced and reputable to participate in and
support IDICO’s growth after equitization;
- Amount of shares to be sold to strategic
investors: 135,000,000 shares (accounting for 45% of the charter capital) which
are sold to the maximum of 03 investors whose core business sectors or
industries are consistent with IDICO's. In case of selection of 3 investors, an
investor operating in a business sector or industry out of those of IDICO shall
be preferred according to the following rules:
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+ An investor having competence in giving support
in the sector of investment in housing and urban development and construction
shall be selected;
+ An investor having competence in giving support
in the sector of electricity generation and business shall be selected;
- Maximum percentage of shares to be sold to
strategic investors (in case of selection of three investors meeting criteria
for admission as strategic investors): 45,000,000 shares/ an investor
(accounting for 15% of IDICO’s charter capital).
2.2. Approach to sale of shares and handling of
residual issued shares
a) Share selling approach: Shares shall be sold
according to the direct negotiation approach after an auction for initial
public offering is conducted with the offering price which is not lower than
the successful average bid determined in that auction for initial public
offering. Below are some specific situations that likely to happen:
- If only one (01) investor meeting criteria for
admission as a strategic investor bid to purchase shares of which the volume
account for 45% or lesser percentage of shares that IDICO offers to strategic
investors, the IDICO’s Steering Committee on Equitization must file a report on
this case to the Minister of Construction to seek his/her decision whether such
volume of shares can be sold to strategic investors according to the direct
negotiation approach after an auction for initial public offering thereof with
the offering price which is not lower than the successful average bid
determined in such auction.
- If two (02) investors eligible for becoming
strategic investors bid to purchase shares of which the volume account for more
than 45% of shares that IDICO offers to strategic investors, the IDICO’s
Steering Committee on Equitization must send a report on this case to the
Minister of Construction to seek his/her decision whether such volume of shares
can be put up for an auction attended by these strategic investors on Stock
Exchanges.
The latter shall come after the former that accept
the successful average bid determined in the former as the starting price
according to the principle of selection of investors whose bid prices descend
till the bid received cover the entire volume of shares that IDICO offers.
- In case where the maximum of three (03) investors
meeting regulatory criteria for eligibility to become strategic investors bid
to purchase of shares of which total volume are equal to or less than 45% of
total quantity of shares that IDICO offers to strategic investors, the IDICO’s
Steering Committee on Equitization shall seek an agreement on the amount of
shares to be sold and selling prices at which shares are sold to specific
strategic investors and submit it to the Minister of Construction to seek
his/her approval decision under which the amount of shares sold to strategic
investors are consistent with the amount of shares that each strategic investor
bids to purchase with the offering price in this case which is not lower than
the average price of a successful bid determined in an auction for initial
public offering.
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- In case where a strategic investor is in default
on commitments and in breach of prescribed transfer restrictions, they must compensate
for all losses incurred according to commitments and laws currently in force.
2.3. Processes and procedures for selection of
strategic investors
a) Step 1: Announcing the equitization plan to
interested investors
Ministry of Construction/ IDICO issues a notice on
their websites to interested investors who wish to become strategic investors
(Ministry of Construction issues an official document No. 2192/BXD-QLDN dated
October 7, 2016 on invitations for interested investors and posts it on the Ministry
of Construction’s website at the link:
http://moc.gov.vn/en/web/guest/trang-chi-tiet/-/tin-chi-tiet/Z2jG/353507/353564/thong-bao-va-moi-cac-nha-dau-tu-quan-tam-mong-muon-tro-thanh-nha-dau-tu-chien-luoc-sau-khi-co-phan-hoa-cac-cong-ty-me-tong-cong-ty-song-da-idico-hud-vicem.html).
b) Step 2: Making public disclosure of criteria and
procedures for selection and share selling approach
Ministry of Construction informs their decision on
criteria and procedures for selection of strategic investors, approach to
selling shares to strategic investors, submission deadline, and continues to
send invitations to interested investors to select strategic investors (such
decision and invitations are posted on the website of the Ministry of
Construction, IDICO or the Construction Journal).
c) Step 3: Interested investors' registration and
submission of their applications
Investors file 03 sets of documents (including 01
original set and 02 duplicate set) at the Ministry of Construction (Department
of Business Administration acting as a liaison agency) or at IDICO.
A set of documents must include:
- Registration form for becoming a strategic
investor (Form No. 01).
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+ Building long-term interest-based partnership
(for at least 10 years) with and giving support to IDICO after equitization;
+ Not transferring purchased shares within at least
10 (ten) years from the date on which the newly-established joint stock company
is granted the initial enterprise registration certificate;
+ Guaranteeing stable growth and ongoing
implementation of IDICO’s approved growth strategy till 2020;
+ Continuing to maintain IDICO’s main sectors,
industries and brand after equitization within at least 10 years from the date
of IDICO's official transformation into a joint stock
company;
+ Continuing to re-employ all staff members as
prescribed in the equitization plan approved by the Prime Minister within at
least 5 years and providing re-training for the existing staff to ensure they
can meet new job requirements;
+ Respecting all activities of political or
socio-political unions or associations inside IDICO as provided in Article 6 of
the Corporate Law currently in force;
- Competency profile of a corporate investor
contains the following main documents:
+ Enterprise registration certificate remaining in
effect;
+ Evidence of competency in market exploitation,
high-technology expertise, reputation, brand, experience in corporate
governance and business administration in one of three following sectors: (1)
investment in industrial zone and transport infrastructure; (2) investment in
housing and urban development and construction; (3) electricity generation and
business, which is consistent with IDICO’s growth strategy in order to support
IDICO after its equitization (shown by certification of the applicant
investor or a competent regulatory authority or economic agreements or
decisions issued to project owners, contractors, general contractor, etc.);
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+ Evidence of sufficient capital available for
purchase of shares stated in the application (except its capital already used
for investment activities) or bank guarantees or account freezing notices
issued by commercial banks or credit institutions currently operating within
Vietnam where the applicant investor opens their account (the minimum
validity periods of these documents must be 6 months – using the Form No. 03).
- Submission time limit: 25 days from the
date on which the Decision on criteria and procedures for selection, method of
sale of shares to strategic investors of the Parent Company – IDICO is
officially announced.
d) Step 4: Carrying out assessments and inspections
- Assessment
+ IDICO’s Steering Committee on Equitization is
responsible for establishing an Advisory Board to assess and select strategic
investors according to criteria approved by the Minister of Construction;
+ Participants: Board of Members, Board of
Directors, Comptrollers, representatives of IDICO’s trade union;
representatives of departments or administrations such as: Corporate
management, staff and organization, planning and finance; Head of the Advisory
Board who is the Chairperson of the Board of Members cum Vice Head of IDICO’s
Steering Committee of Equitization;
+ Duties: Studying, reviewing and assessing
conformance to criteria for selection, commitments and competency of candidate
investors, compiling the list of qualified investors submitted to IDICO's
Steering Committee on Equitization to seek its decision;
+ Inspection: Steering Committee on Equitization
(the Department of Business Administration acting as a liaison agency) shall
lead inspections, propose the list of strategic investors, amount of shares to
be sold and selling prices of shares offered to strategic investors of the
Parent Company – IDICO to seek the approval decision from the Minister of
Construction (using the Form No. 04).
dd) Step 5: Approval of list of strategic
investors, volume of shares to be sold and selling prices of shares offered to
strategic investors
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Article 2. This Decision shall enter into force from the signature
date.
Article 3. Ministry’s Office Chief, Directors of Departments and
Administrations such as corporate management, planning and finance, staff and
organization; Head of IDICO’s Steering Committee; Board of Members, General
Director of IDICO; Advisory Board assisting IDICO’s Steering Committee on
Equitization and Heads of entities and units concerned, shall be responsible
for implementing this Decision./.
PP. MINISTER
DEPUTY MINISTER
Bui Pham Khanh
Form
No. 01 (mandatory)
…………………………
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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……….. (signature
place),dated (dd/mm/2017)…….
REGISTRATION FORM
PARTICIPATION IN PURCHASE OF STRATEGIC
INVESTOR’S SHARES
(Constituting
an integral part of the written commitment and the agreement on sale and
purchase of shares in case of options given)
Dear
- Ministry of Construction
- Steering Committee of Equitization of the Parent Company - IDICO
1. Enterprise/investor’s name:
..........................................................................................
2. Main office/ address:
....................................................................................................
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4. Account number: …………………………………..; opened at:
.....................................
5. Business Registration Certificate No./
Enterprise Registration Certificate or Establishment and Operation License:
…………, issued on (dd/mm/yyyy)……., or reissued for the…………time, at……………………
6. Main business sectors or industries:
.....................................................
7. Charter capital: …………………………………………. (clarifying
the structure of charter capital; details about shareholders that are legal
persons, capital contribution date and contributed capital proportion)
8. Owner’s equity: .........................................................................................................
9. Legal representative: ……………………….., title:
...................................
10. Contact person (where necessary): …………, Title:
…………, Telephone number: .........
11. Investor’s competency
11.1. Evidence of competency in: market
exploitation, high-technology expertise, reputation, brand, experience in
corporate governance and business administration in one of three following
sectors: (1) investment in industrial zone and transport infrastructure; (2)
investment in housing and urban development and construction; (3) electricity
generation and business, which is consistent with IDICO’s growth strategy in
order to support IDICO after its equitization (shown by certification of the
applicant investor or a competent regulatory authority or economic agreements
or decisions issued to project owners, contractors, general contractor, etc.).
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No.
Indicators
Unit
Fiscal year
Notes
2014
2015
2016
Till end of
QII/2017
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1
Revenue (exclusive of consolidated revenue of
subsidiaries and associate companies)
a
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-
Ratio of these revenues to total revenue
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b
Other sector-specific revenues
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-
Ratio of these revenues to total revenue
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2
Financial resources sufficient for purchase of
shares for which the investor bid (calculated according to the successful
average bid price determined in an auction for initial public offering, but
subject to the requirement that it must be equal to the starting price set in
an approved auction for initial public offering)
a
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b
Hold an account opened at a commercial bank
legally operating within Vietnam
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c
Evidence of sufficient capital available for
purchase of shares that the investor has bidden (except their capital already
used for investment activities) or bank guarantees or account freezing
notices issued by commercial banks or credit institutions currently operating
under Vietnam’s domestic laws where the applicant investor opens their
account (the minimum validity periods of these documents must be 6 months),
describing the sum sufficient to purchase at least 15% of IDICO's charter
capital (the maximum quantity of shares that the investor may bid for
accounts for 45% of IDICO's charter capital).
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d
Required minimum total asset must be VND 2,500 billion
(or in case of foreign investors, such total asset must be USD 115.0 million)
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dd
Legal minimum equity must be 1,500 billion dong
(or in case of foreign investors, such equity must be USD 68.0 million)
e
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g
Overdue debts
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h
Accrued losses
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i
Bad debts
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k
Tax authority’s certifying in writing that the
investor has fulfilled their tax obligations to the State by the submission
date
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
12. Submission of their business proposals to be
carried out after IDICO’s equitization;
In our full knowledge that the Ministry of
Construction and IDICO’s Steering Committee on Equitization are carrying out
equitization and are wishing to look for a strategic investor that is
appropriate to give support to IDICO after equitization and make a commitment
to long-term interest-based partnership with the Corporation.
(Specify capabilities of giving support of
a strategic investor for IDICO’s core business activities).
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
By this document, we, the Group (Corporation,
Company, etc.) as an applicant for becoming a strategic investor, undertake
to:
- Purchase all of shares that the investor has
applied to bid for;
- Upon becoming a strategic investor, give a sum
equaling 20% of value of shares that we intend to purchase as a deposit
calculated at the starting price already approved by an authorized entity. In
case of giving up its right to purchase shares, that strategic investor shall
not be refunded such deposit;
- Build a long-term interest-based partnership with
and support for IDICO after equitization (clearly state actions to be taken
to show the investor’s commitment to building such partnership with and giving
support for IDICO);
- Not transfer purchased shares within at least 10
(ten) years from the date on which the newly-established joint stock company is
granted the initial enterprise registration certificate;
- Not engage in any conflicts of interest with
IDICO’s approved growth strategy.
- Not owe overdue debts and incur accrued losses or
bad debts, and ensure that the investor’s enterprise is not in breach of
laws.
- Not be a subsidiary, associate company or a
company in which IDICO has made its equity participation;
- Guarantee stable growth and ongoing implementation
of IDICO’s approved growth strategy till 2020;
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- Continue to re-employ all staff members as
prescribed in the equitization plan approved by the Prime Minister within at
least 5 years and commit to providing re-training for the existing staff to
meet job requirements;
- Respect all activities of political or socio-political
unions or associations inside IDICO as provided in Article 6 of the Corporate
Law in force.
After being accepted as your strategic investor,
we, the Group (Corporation, Company, etc.), undertake to fulfill our
agreed-upon rights and obligations under laws, regulations of the Ministry of
Construction, Steering Committee on Equitization and IDICO, and above-stated
commitment clauses.
To the extent that we, the Group (Corporation,
Company, etc.), are in breach of commitments made above or commit
fraudulent acts on submitted documents, we will be susceptible to the decision
from the Ministry of Construction, Steering Committee on Equitization/ IDICO or
agency representing the State's part of capital contribution to IDICO to
deprive us of the strategic investor's rights and will not be refunded any
margin, deposit and other monetary contributions.
We would like to enclose herewith our competency
profile (including a certified true copy of Business Registration
Certificate/ Establishment Decision or License, Introduction and Information
Sheet about Investor’s Competency, Audited Financial Statement, original of
Bank Guarantee or Account Freezing Notice issued by a bank or credit
institution, etc.) for consideration of the Ministry of Construction, the
Steering Committee on Equitization and IDICO.
Best regards,
Recipients:
- As stated above;
- IDICO;
- Depositories: ………….
ENTERPRISE’S
LEGAL REPRESENTATIVE
(Signature, full name and seal)
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Form
No. 02 (mandatory)
……………………………..
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
(give the applicant enterprise’s name as
specified in their Business Registration Certificate)
No.: ……………..
………… (signature
place), dated (dd/mm/2017)…….
LETTER OF COMMITMENT
OF STRATEGIC INVESTOR
(constituting
an integral part of the registration form and the agreement on sale and
purchase of shares)
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
- Ministry of Construction
- Steering Committee of Equitization of the Parent Company - IDICO
1. Company/investor’s name:
...........................................................................................
2. Main office/ address:
....................................................................................................
3. Telephone number: ……………………………………….;
Fax:……………………………
4. Account number: …………………………………..; opened at:
......................................
5. Business Registration Certificate No./
Enterprise Registration Certificate or Establishment and Operation License: …………,
issued on (dd/mm/yyyy)……., or reissued for the…………time, at……………………
............................................................
6. Main business sectors or industries:
......................................................
7. Charter capital: ………………………………………….
(clarifying the structure of charter capital; details about shareholders that
are legal persons, capital contribution date and contributed capital
proportion)
8. Owner’s equity:
............................................................................................................
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
10. Contact person (where necessary): ……………, title:
………….., telephone number: ..............
11. Bank guarantees or account freezing notices
issued by commercial banks or credit institutions currently operating under
Vietnam’s domestic laws where the applicant investor opens their account,
describing the sum sufficient to purchase shares (at least 15% of IDICO's
charter capital; the maximum quantity of shares that the investor may
bid for accounts for 45% of IDICO's charter capital; the minimum validity
periods of these documents must be 6 months): No…………signed by the Director
of a commercial bank’s branch on........(dd/mm/201...) (this information field
is applied if the applicant investor fails to prove that their capital is
sufficient to purchase the amount of shares that they apply to bid for).
When being admitted as a strategic investor in
IDICO, we, the Group (Corporation, Company, etc.), hereby make our
long-term commitment to sharing our interest and giving support to IDICO,
including the following specific terms and conditions:
1/ Ensure financial resources sufficient to
purchase all of shares that we have applied to bid for (equivalent to ……………….%
of the Corporation’s charter capital); support given to increase IDICO’s
financial capacity after IDICO’s transformation into a joint stock company;
2/ As a strategic investor, we agree to give a sum
equaling 20% of value of shares that we intend to purchase as a deposit
calculated at the starting price already approved by an authorized entity. In
case of giving up its right to purchase shares, we will not be refunded such
deposit;
3/ Build a long-term interest-based partnership (at
least 10 years) with and support for IDICO after equitization (clearly state
actions to be taken to show the investor’s commitment to building such
partnership with and giving support for IDICO);
4/ Not transfer purchased shares within at least 10
(ten) years from the date on which the joint stock company is granted the
certificate of initial registration of operations of enterprise under the
Corporate Law. In special cases where these shares need to be transferred
before such prescribed time limit, the transfer approval decision issued in a
shareholders' general meeting attended by shareholders representing at least
sixty five percent (65%) of voting shares (a shareholders' general meeting held
in a form of collection of written opinions from shareholders is not accepted)
must be sought;
5/ Not engage in any conflicts of interest with
IDICO’s approved growth strategy;
6/ Not owe overdue debts and incur accrued losses
or bad debts, and ensure that the investor’s enterprise is not in breach of
laws;
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8/ Guarantee stable growth and ongoing
implementation of IDICO’s approved growth strategy till 2020;
9/ Continue to maintain IDICO’s main sectors, industries
and brand after equitization within at least 10 years from the date of IDICO's
official transformation into a joint stock company;
10/ Continue to re-employ all staff members as
prescribed in the equitization plan approved by the Prime Minister within at
least 5 years and provide re-training for the existing staff to ensure they can
meet new job requirements;
11/ Respect all activities of political or
socio-political unions or associations inside IDICO as provided in Article 6 of
the Corporate Law currently in force.
On the basis of long-term and comprehensive
partnership, we, in the role as a strategic investor, major shareholder, and
IDICO, will uphold and make best use of both parties' advantages to obtain
greater achievements and benefits.
When being accepted as your strategic investor, we,
the Group (Corporation, Company, etc.), undertake to fulfill our agreed-upon
rights and obligations under laws, regulations of the Ministry of Construction,
Steering Committee on Equitization and IDICO, and above-stated commitment
clauses.
To the extent that we, the Group (Corporation,
Company, etc.), are in breach of commitments made above or commit fraudulent
acts on submitted documents, we will be susceptible to the decision from the
Ministry of Construction, Steering Committee on Equitization/ IDICO or agency
representing the State's part of capital contribution to IDICO to deprive us of
the strategic investor's rights and will not be refunded any margin, deposit
and other monetary contributions.
Best regards,
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
ENTERPRISE’S
LEGAL REPRESENTATIVE
(Signature, full name and seal)
Form
No. 03 (mandatory)
(required
in case of failure to prove capital sufficient to purchase the amount of shares
that the investor has applied to bid for)
COMMERCIAL
BANK…….
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
No.: …………
………….,
(dd/mm/2017)
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
FOR PURCHASE OF STRATEGIC INVESTOR’S SHARES
(constituting
an integral part of the agreement on sale and purchase of shares)
Dear
- Ministry of Construction
- Steering Committee of Equitization of the Parent Company - IDICO
At the request of [give the strategic investor’s
name] (hereinafter referred to as investor) that is an investor submitting
application for purchase of strategic investor’s shares with the amount of
shares that they apply to bid for and undertake to purchase: ……….shares (in
words:…………), accounting for ………….% of IDICO’s charter capital.
The regulations of the Ministry of Construction and
IDICO’s Steering Committee on Equitization (hereinafter referred to as Steering
Committee on Equitization) prescribe that the investor is bound to provide the
Ministry of Construction and the Steering Committee on Equitization with the
letter of guarantee or bank account freezing notice with a sum given as security
for their obligations and liabilities to carry out the agreement on sale and
purchase of shares;
We, [give the bank’s name] in [give the
name of the country or territory] with the registered main office located
at [specify the address, telephone number, fax number and e-mail address of
the bank] (hereinafter referred to as "bank"), by this document,
would like to undertake to provide security and freeze the investor’s account
for the investor’s compliance with their obligations to carry out the agreement
with the sum worth [clarify the amount in numbers, words and currency units
used].
We hereby undertake to make unconditional and
irrevocable payments of any sum falling within the limit [specify the
guarantee amount] as stated above to the Ministry of Construction and
Steering Committee on Equitization upon receipt of the report from the Ministry
of Construction or the Steering Committee on Equitization on the investor’s
default on the agreement on sale and purchase of shares during the validity period
of the guarantee for fulfillment of obligations to carry out such agreement.
Notwithstanding the aforesaid, we agree that any
modification of terms and conditions of the agreement on sale and purchase of
shares or any document related to such agreement signed between the investor
and representative of the Ministry of Construction or Steering Committee on
Equitization may not lead to any change in our obligations specified in this
letter of guarantee.
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This letter of guarantee and account freezing
notice is valid for 6 months from the date of issuance till the date
(dd/mm/201...) or when the representative of the Ministry of Construction or
the Steering Committee on Equitization has recovered all debts incurred from
sale and purchase of shares, depending on whichever is earlier.
Recipients:
- As stated above;
- IDICO;
- Depositories:
BANK’S LEGAL
REPRESENTATIVE
(Full name, title, signature and seal)
Form
No. 04 (for reference only)
MINISTRY OF
CONSTRUCTION
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SOCIALIST REPUBLIC
OF VIETNAM
Independence - Freedom - Happiness
---------------
No. /BXD-QLDN
Re. Acceptance of
the list of strategic investors, amount and selling price of shares offered
to investors applying for admission as strategic investors of the Parent
Company - IDICO
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Dear Housing and
Urban Development Corporation,
Upon receipt of the Ministry of Construction’s
Request No. /TCT-HDTV dated (dd/mm/2017) of the IDICO’s Board of Members for approval
of the list of strategic investors, amount and selling price of shares and
contents of the agreement on sale and purchase of shares offered to strategic
investors. After considering the Request, the Ministry of Construction gives
the following opinions:
1. Consent to the list of strategic investors,
amount and selling prices of shares offered to investors applying for admission
as strategic investors of the Parent Company – IDICO as requested by IDICO’s
Board of Members as follows:
- List of strategic investors:
+ Company ………………………..
+ Company ………………………..
+ Company ………………………..
- Quantity of shares to be sold to strategic
investors: 135,000,000 shares, accounting for 45% of the charter capital;
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2. Assign IDICO’s Board of Members to lead,
negotiate and sign the agreement on sale and purchase of shares with the
strategic investors specified in paragraph 1, ensuring that the agreement is
coherent and consistent with legally required procedures and processes,
commitments made in the registration form for participation in purchase of
strategic investor’s shares and the commitment to fulfilling investor’s
liabilities as well as complies with existing regulations of laws.
This is for your reference and compliance. Written
report on implementation of this document must be submitted to the Ministry
according to regulations./.
Recipients:
- As stated above;
- Steering Committee on Equitization;
- Planning and Finance, Staff and Organization
Departments;
- Deposited for Archive and corporate
administration purposes (S03).
MINISTER
Form
No. 05 (mandatory)
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
AGREEMENT ON SALE AND PURSHCE OF SHARES
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
I. LEGAL BASES
Pursuant to the Civil Code No. 91/2015/QH13 dated
January 24, 2015;
Pursuant to the Law on Enterprises No. 68/2014/QH13
dated November 26, 2014;
Pursuant to the Law on Securities No. 70/2006/QH11
dated June 29, 2006 and the Law No. 62/2010/QH12 dated November 24, 2010 on
Amendments and Supplements to certain Articles of the Law on Securities No.
70/2006/QH11;
Pursuant to the Government’s Decree No.
58/2012/ND-CP dated July 20, 2012, detailing and guiding the implementation of
a number of articles of the Law on Securities and the Law on Amendments and
Supplements to a number of articles of the Law on Securities;
Pursuant to the Government’s Decree No.
59/2011/ND-CP dated July 18, 2011 on transformation of wholly state-owned
enterprises into joint stock companies; the Government’s Decree No.
189/2013/ND-CP dated November 20, 2013 and the Government’s Decree No.
116/2015/ND-CP dated November 11, 2015 on amendments or supplements to the
Decree No. 59/2011/ND-CP dated July 18, 2011 on transformation of wholly
state-owned enterprises into joint stock companies and other legislative
instruments providing instructions for these documents;
In compliance with the Decision No. 58/2016/QD-TTg
dated December 28, 2016 on criteria for classification of state-owned
enterprises, state-invested enterprises and the list of state enterprises
subject to the reorganization requirement for the period of 2016 – 2020;
Pursuant to the Prime Minister’s Decision No.
707/QD-TTg dated May 25, 2017 on approval of the program “Restructuring of
state enterprises with particular attention paid to state-owned economic groups
and corporations for the 2016 - 2020 period”;
Pursuant to the Prime Minister’s Decision No.
776/QD-TTg dated June 2, 2017 on approval of the Plan for equitization and
transformation into the joint stock parent company - Vietnam Urban and
Industrial Zone Development Investment Corporation and the Document No.
7676/VPCP-DMDN dated July 21, 2017 of the Government’s Office on consent from
the Deputy Prime Minister Vuong Dinh Hue to use of IDICO valuation results;
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Pursuant to the Circular No. 196/2011/TT-BTC dated
December 26, 20111 of the Minister of Finance providing instructions on the
initial offering of shares and management and use of revenues earned from
equitization of wholly state-owned enterprises transformed into joint stock
companies and the Circular No. 115/2016/TT-BTC dated June 30, 2016 of the
Minister of Finance on amendments and supplements to the Circular No.
196/2011/TT-BTC dated December 26, 2011;
Pursuant to the Decision No. 865/QD-BXD dated
August 21, 2017 of the Minister of Construction on the initial public offering
of shares of the Parent Company – IDICO;
Pursuant to the Decision No. 866/QD-BXD dated
August 21, 2017 of the Minister of Construction on approval of criteria and
procedures for selection of, methods of sale of shares to, strategic investors
in the process of carrying out the plan for equitization of parent company -
Vietnam urban and industrial zone development investment corporation (IDICO);
According to Application Documents for
participation in purchase of shares for admission as strategic investors
submitted by the Company...........on (dd/mm/2017);
According to the results of the auction for IPO of
the Parent Company – IDICO conducted on (dd/mm/2017);
Pursuant to the Document No. /BXD-QLDN dated
(dd/mm/ 2017) of the Minister of Construction on negotiation over sale of
shares of the Parent Company – IDICO;
According to the registration form for
participation in purchase of strategic investor’s shares submitted by the
Company...........on (dd/mm/2017);
According to the written commitment on fulfillment
of obligations of a strategic investor that the Company makes on
(dd/mm/2017);
According to the Letter of Guarantee or the account
freezing notice issued for purchase of strategic investor’s shares to the
Company……by the Bank or credit institution on (dd/mm/2017);
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Today, on (dd/mm/2017) at IDICO located at No. 151
ter, Nguyen Dinh Chieu street, Ward 6, District 3, Ho Chi Minh city, we,
including the parties below:
II. CONTRACTING PARTIES
1. Representative of the Seller (Party A)
Transaction name: VIETNAM HOUSING AND URBAN DEVELOPMENT
CORPORATION
- Representative: Mr. ………………………………. Title:
……………………………………
Address: 151 ter, Nguyen Dinh Chieu street, Ward 6,
District 3, Ho Chi Minh city
- Telephone: 028.34388883; Fax: 028.39312705.
- Website: www.idico.com.vn
- Frozen account number: 3101.0006.456.789, opened
at the Bank for Investment and Development of Vietnam – Ho Chi Minh city
branch.
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ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
- Tax identification number: 0302177966
2. Representative of the Buyer (Party B)
- Transaction name:
........................................................................................................
Representative: Mr. ……………………………………………… Title:
.............................
Address:
.........................................................................................................................
- Telephone number: …………………………………………….Fax:
................................
- Website:
.......................................................................................................................
- Account number: ……………………………., opened at the Bank
………………………
- Business Registration Certificate No./ Enterprise
Registration Certificate or Establishment and Operation License: …………, issued
on (dd/mm/yyyy)……., or reissued for the…………time, at……………………
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After discussion and negotiation, both contracting
parties agree to sign the agreement on sale and purchase of shares
(hereinafter referred to as “Agreement”), including the following terms
and conditions:
ARTICLE 1. INTERPRETATION
1.1. "Party A” refers to the Seller, “Party
B” refers to the Buyer
1.2. “Both contracting parties” refers to
“Party A" and “Party B”.
1.3. Either “IDICO” or "Corporation”,
depending on use contexts, refers to Vietnam Housing and Urban Development
Corporation;
1.4. "Share" refers to the charter
capital divided into equal parts which are called shares.
1.5. “IDICO’s charter capital” refers to
total face value of shares already sold and mentioned in Article 7 herein.
1.6. “Outstanding share” refers to
authorized shares for which shareholders have paid IDICO in full. At the
date of registration for establishment of IDICO, outstanding shares are defined
as the gross of shares of different kinds for which bids have already been
made.
1.7. “Authorized share” refers to total
amount of shares of different types that are offered under the decision of a
shareholders' general meeting. The amount of authorized shares of IDICO
determined on the enterprise registration date refers to total shares that
IDICO intends to sell, including shares that have been or have not been bidden.
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1.9. “Share dividend” refers to net profit
paid for each share in cash or other property by the profit that IDICO retains
after fulfilling financial obligations;
1.10. “Parent company” refers to IDICO
falling into one of the following cases:
a. It is accorded the sole owner’s rights over
another company;
b. It owns more than 50% of another company's
charter capital;
c. It has the right to directly or indirectly
decide to appoint a majority or all of members of the Governing Board, the
Board of Directors or General Director of another company;
d. It is vested with rights to make approval
decisions on revision and modification of another company’s Charter;
e. It has other controlling rights as agreed upon
between IDICO and other enterprise which are mentioned in the Charter of the
enterprise which IDICO controls;
1.11. “Subsidiary” refers to enterprises
falling into cases referred to in point 1.10 of this Article, organized in a
form of single-member limited liability company, joint stock company,
multiple-member limited liability company, joint venture company or overseas
establishments.
1.12. “Associate company” refers to an
enterprise in which IDICO has shares or contributed capital which accounts for
less than 50% of the former’s charter capital. Associate companies are
organized and operate under the Law on Enterprises and other provisions of
relevant laws.
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1.14. “Member entity” refers to
subsidiaries, associate companies and dependent accounting entities under
IDICO’s control, such as branches and representative offices, etc.
1.15. “Authorized representative of IDICO’s part
of equity contributed to other enterprise" refers to a person
authorized by IDICO in writing or under an agreement to carry out IDICO’s
rights, responsibilities and obligations at other enterprises in accordance
with laws and IDICO’s Charter, hereinafter referred to as Representative.
ARTICLE 2. OFFERED SHARES AND CONTRACT VALUE
By this document, PARTY A agrees to sell and PARTY
B agrees to buy shares of the Parent Company – IDICO – Joint Stock Company
according to the following information:
1.1. Names of shares sold/purchased: The Parent
Company – IDICO – Joint Stock Company (IDICO).
1.2. Types of shares: Ordinary shares; shares
subject to transfer restrictions within 10 years from the date on which the
newly-established joint stock company is granted the initial enterprise
registration certificate.
1.3. Face value/ price: 10,000 VND/share.
1.4. Charter capital of the issuing body:
3,000,000,000,000 dong.
1.5. Proportion of capital purchased/sold:
…………………………..% of the charter capital.
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1.7. Selling/buying prices of shares: ……………………….
dong/share (in words: ………………… dong per a share)
1.8. Total contract value (transaction value):
………..dong (in words:……million dong)
ARTICLE 3. METHOD OF EXECUTION AND PAYMENT
PERIOD
3.1. Execution method
a. Guarantee: In order to guarantee the right to
purchase shares under the provisions of the Decision No. 866/QD-BXD dated
August 21, 2017 of the Minister of Construction on approval of criteria,
procedures for selection of strategic investors, method of sale of shares to
strategic investors in the course of carrying out the plan for equitization of
the Parent Company – IDICO, PARTY B has provided PARTY A with the letter of
guarantee or the account freezing notice of the Bank or the Credit Institution
………………. with the sum of…………………….dong (in words: ………………) that is valid
for 6 months;
b. Deposit: In order to secure the right to
purchase shares according to relevant regulations, PARTY B has already paid a
deposit of ………………………..dong (in words:…………………), equivalent to …………………….% of
value of shares that PARTY B has applied to purchase (the minimum deposit must
account for 20% of value of shares to be purchased) to PARTY A, into the
account No…………………….at the Bank……………………….of PARTY A on (dd/mm/2017);
3.2. Payment period
a. Within 10 (ten) working days of the signature
date, PARTY B shall be obliged to pay the remaining costs of purchase of shares
(total contract value minus the deposit) to PARTY A with the sum of
………………….dong (in words: ……………) following instructions given in 4.3 of
Article 4 of the Agreement;
b. Within 10 (ten) working days from the date on
which PARTY A receives the remaining contractual amount, PARTY A shall be
responsible for promptly sending a written request for release of the guarantee
amount and freezing of the account for PARTY B at the bank………………….. (or the
credit institution ………………………….) that has issued such account to PARTY A;
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ARTICLE 4. PAYMENT METHOD
4.1. Payment currency: Vietnam Dong.
4.2. Payment form: Wire transfer
4.3. PARTY B shall pay PARTY A costs of purchase of
shares as provided in paragraph 3.2 of Article 3 herein according to the
following instructions:
- Beneficiary: Vietnam Housing and Urban
Development Corporation – Single-member Limited Liability;
- Account number: ……………………………………………………………………………………;
- Opened at: Bank ………………………………………………………………………………;
- Wire transfer information: Paying costs of
purchase of shares of Vietnam Housing and Urban Development Corporation – Joint
Stock Company;
- Amount of shares to be
purchased……………………………shares.
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a. In cases where PARTY B violates the agreed-upon
payment due date as stated in paragraph 3.2 of Article 3 herein, PARTY B will
be subject to penalty for such late payment as follows:
- A monetary penalty accounting for 2% of total
contract value is imposed for 1 day late.
- A monetary penalty accounting for 5% of total
contract value is imposed for between 2 days and 5 days late (including
national holidays and other permissible days-off).
b. In cases where PARTY B’s late payment on costs
of purchase of shares exceeds 5 days as specified in paragraph 3.2 of Article 3
herein, in addition to the monetary penalties for late payment referred to in
subparagraph a of paragraph 4 of Article 4 herein, PARTY B shall be deprived of
the right to purchase shares and lose the deposit already paid to PARTY
A.
ARTICLE 5. RIGHTS AND OBLIGATIONS OF PARTY A
5.1. PARTY A’s rights
5.1.1. Request PARTY B to fulfill agreed obligations;
5.1.2. Request PARTY B to provide necessary
information prescribed in Vietnam’s domestic laws in force;
5.1.3. Request PARTY B to pay contract price in
full in accordance with provisions laid down in Article 3 and 4 herein.
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5.2.1. Fulfill their agreed obligations;
5.2.2. Carry out procedures for grant of the Share
Ownership Certificate to PARTY B in accordance with laws;
5.2.3. Provide PARTY B with documents evidencing
approval of results of PARTY A’s agreement to offer shares to PARTY B from the
Minister of Construction;
5.2.4. Within 30 working days of PARTY A’s receipt
of the business registration certificate for their business activities carried
out in a form of a joint stock company, PARTY A shall be responsible for
implementing procedures required for grant of the Share Ownership Certificate
to PARTY B.
5.2.5. PARTY A shall be liable for costs associated
with grant of the Share Ownership Certificate to PARTY B.
5.2.6. Bear responsibility for the fact that PARTY
A is a legal person established legally and existing in effect according to
Vietnam's domestic laws and have full rights and powers to sign and carry out
this Agreement.
5.2.7. Cooperate with PARTY B in carrying out plans
or strategies aiming at assisting PARTY A in their business after equitization.
ARTICLE 6. RIGHTS AND OBLIGATIONS OF PARTY B
6.1. PARTY B’s rights
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6.1.2. Request PARTY A to complete procedures required
for granting the Share Ownership Certificate by the time limit set forth in
paragraph 5.2.4 of Article 5 herein;
6.1.3. Enjoy all rights and obligations arising
from the amount of shares that they have purchased from the date on which PARTY
B becomes an official shareholder of PARTY A;
6.1.4. Have other rights agreed upon in this
Agreement and prescribed in laws.
6.1.5. Enjoy ownership interests, enjoy and assume
all of rights and obligations of a shareholder in accordance with laws, the
Joint Stock Company’s Charter after completion of procedures for sale and
purchase of shares.
6.2. PARTY B’s obligations
6.2.1. Fulfill their agreed obligations;
6.2.2. Ensure conformance to regulatory
requirements for becoming PARTY A’s strategic investor in accordance with laws;
6.2.3. Provide necessary documents and information
required by PARTY A in order to perform share deals;
6.2.4. Pay costs of purchase of shares in full as
provided in paragraph 3.2 of Article 3 herein;
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6.2.6. Bear responsibility for the fact that PARTY
B is a legal person established legally and existing in effect according to
Vietnam's domestic laws and have full rights and powers to sign and carry out
this Agreement;
6.2.7. Build long-term interest-based connection
with PARTY A and support PARTY A after equitization in terms of new technology
transfer; personnel training; financial capacity enhancement; corporate
governance;…; development of product consumption markets related to main
economic sectors and industries of PARTY A;
6.2.8 Not transfer purchased shares within at least
10 (ten) years from the date on which the joint stock company is granted the
initial enterprise registration certificate for its business under the
Corporate Law. In special cases where these shares need to be transferred
before such prescribed duration, the transfer approval decision issued in a
shareholders' general meeting attended by shareholders representing at least sixty
five percent (65%) of voting shares (a shareholders' general meeting held in a
form of collection of written opinions from shareholders is not accepted) must
be sought.
6.2.9. Ensure IDICO’s stable growth is upheld and
the approved growth strategy is continued to be carried out till 2020;
6.2.10. Continue to maintain IDICO’s main sectors,
industries and brand after equitization within at least 10 years from the date
of IDICO's official transformation into a joint stock
company;
6.2.11. Continue to re-employ all staff members as
prescribed in the equitization plan approved by the Prime Minister within at
least 5 years and provide re-training for the existing staff to ensure they can
meet new job requirements;
6.2.12 Not engage in any conflicts of interest with
PARTY A’s approved growth strategy;
6.2.13. Costs related to sale and purchase of
shares shall fall within PARTY B’s responsibilities and shall be paid by PARTY
B;
6.2.14. PARTY B shall be held responsible for
provision of accurate and authentic information about their financial,
accounting and other data (if such provision is appropriate and legally
permissible) during the process of both parties’ negotiation and discussion
about investment partnership;
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ARTICLE 7. PARTIES’ COMMITMENTS
7.1. PARTY A hereby undertakes that:
7.1.1. Conclusion and execution of this Agreement
on the PARTY A's side have been validated by all internal procedures of PARTY A
that are necessary for such activities;
7.1.2. Conclusion of this Agreement or
implementation or compliance with terms and conditions of this Agreement shall
not lead to any discrepancy or any violation against terms and conditions or
regulations of any agreement or document or other arrangement to which PARTY A
is a party or is bound, or shall not result in any violation against Vietnam’s domestic
laws.
7.2. PARTY B hereby undertakes that:
7.2.1. Conclusion and execution of this Agreement
are conformable to laws and statutes of PARTY B;
7.2.2. PARTY B has full capacity and conditions
prescribed in laws to sign this Agreement. Conclusion of this Agreement or
implementation or compliance with terms and conditions of this Agreement shall
not lead to any discrepancy or any violation against terms and conditions or
regulations of any agreement or document or other arrangement to which PARTY B
is a party or is bound, or shall not result in any violation against Vietnam’s
domestic laws.
ARTICLE 8. CONTRACT TERMINATION
8.1. This Agreement shall be valid from the
date on which both parties legally sign and stamp it and shall be terminated after
both parties discharge their agreed obligations or shall be terminated early in
the following cases, depending on whichever comes first:
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8.1.2. PARTY A may unilaterally terminate this
Agreement if PARTY B violates payment terms referred to in paragraph 3.2 of
Article 3 and Article 4 herein.
8.1.3. PARTY A may terminate this Agreement due to
“Force majeure" events by informing PARTY B in writing. For the purposes
of this Article, "force majeure event" is defined as any event taking
place beyond PARTY A’s control and leading to PARTY A’s failure to discharge
their agreed obligations;
8.2. Liabilities upon termination
8.2.1. In the cases of contract termination
referred to in subparagraphs 8.1.1 and 8.1.2 above, PARTY A shall be obliged to
refund PARTY B a sum that PARTY B has paid for purchase of shares under this
Agreement within 10 (ten) working days from the date of termination and each
Party shall be liable for their costs incurred from execution of this Agreement
at their own expenses as of the date of termination. After such time limit,
PARTY A shall be liable for interest calculated at the rate equaling 150% of
the borrowing interest rate quoted by the Commercial Bank of Vietnam at the
time of payment which is applied to total late payment sum and actual days of
late payment;
8.2.2. If PARTY A terminates this Agreement without
falling into cases specified in paragraph 1 of Article 8 herein, PARTY A shall
be obligated to refund PARTY B the deposit for execution of this
Agreement.
ARTICLE 9. DISPUTE RESOLUTION
9.1. This Agreement is governed and interpreted by
Vietnam’s domestic laws;
9.2. All disputes likely to arise from this
Agreement shall be negotiated in a respectful and equal manner to guarantee
mutual benefits. If the parties are not able to resolve their dispute through
counseling and mediation, they may file the dispute with the Court having
relevant jurisdiction as provided in laws.
ARTICLE 10. CONFIDENTIALITY
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ARTICLE 11. OTHER CLAUSES
11.1. In the course of execution of this Agreement,
the Parties may negotiate about revision thereof (in particular, if PARTY A
wishes to revise this Agreement, they must send a written report to the
Minister of Construction on draft amendments or modifications to seek his/her
approval before negotiating with PARTY B about these amendments or
modifications). All amendments or modifications of this Agreement may be
carried out after receipt of agreement between Parties and must be made in
writing with signatures of both parties. Documents stating these amendments or
modifications shall constitute an integral part of this Agreement;
11.2. Rights and obligations of each Party in this
Agreement shall be separate and shall not be transferred or assigned to any
other person without written consent from the other Party;
11.3. PARTIES shall undertake that they and other
entities or persons inheriting rights and responsibilities of these parties must
strictly comply with regulations laid down herein without any complaint.
This Agreement shall be binding and enforceable to Parties and
successors, and shall not allow PARTIES to withdraw from commitments made
herein without Parties' permission.
11.4. Annulment of any clause of this Agreement
shall not affect other clauses;
11.5. This Agreement shall be in force from the
signature date and shall continue its effect until termination as provided in
Article 8 hereof on condition that all respective obligations in case of
termination are fulfilled by PARTIES;
11.6. This Agreement composed of ………..(……………) pages
is made into 10 (ten) Vietnamese copies having equal value and each Party keeps
4 (four) copies, including 2 (two) copies sent to the Ministry of Construction
(via the Department of Business Administration as the liaison agency). Both
Parties have read and thoroughly understood contents of this Agreement and have
undertaken to comply with clauses of this Agreement. /.
PARTY A’S
REPRESENTATIVE
(Signature, full name, title and stamp)
Signed on:……………….
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