TẬP ĐOÀN DẦU KHÍ QUOC | GIA VIETNAM CONG HOA XA HOI CHU NGHIA VIET NAM
# TONG CONG TY CO PHAN Độc lập - Tự do - Hạnh phúc
DICH VU KY THUAT DAU KHi VIET NAM
56: 005 /QD-DVKT-HDOQT Tp HCM, ngay del thang 7 nam 2011
QUYÉT ĐỊNH
Về việc phê duyệt nội dung hợp đồng chuyển nhượng cỗ phần PTSC Phú Mỹ ; ; _ HỘI ĐÔNG QUẦN TRỊ
TONG CONG TY CO PHAN DICH VU KỸ THUẬT DÀU KHÍ VIỆT NAM
Căn cứ Luật Doanh nghiệp đã được Quốc hội nước Cộng hòa xã hội chủ nghĩa
Việt Nam thông qua ngày 29/11/2005 và có hiệu lực kê từ ngày 01/07/2006;
Căn cứ Điều lệ của Tổng công ty cổ phần Dịch vụ Kỹ thuật Dâu khí Việt Nam; Xét Tờ trình số 2221/TTr-DVKT ngày 20/7/2011 của Tổng giám đốc;
Trên cơ sở Bảng tông hợp Phiếu lấy ý kiến các Thành viên Hội đồng quản trị,
QUYẾT ĐỊNH:
Điều 1 Phê duyệt nội dung hợp đồng chuyển nhượng cổ phần Công ty cô phần
Cảng dịch vụ dầu khí tống hợp Phú Mỹ thuộc sở hữu của Tổng công ty cổ phân Dich
vụ Kỹ thuật Dầu khí Việt Nam như kèm theo
Điều 2 Tổng giám đốc chịu trách nhiệm chỉ đạo triển khai các thủ tục chuyển nhượng theo đúng quy định của pháp luật hiện hành, Tổng công ty và điều lệ Công ty cô phần Cảng dịch vụ dầu khí tổng hợp Phú Mỹ
Điều 3 Tông giám đốc, Chánh văn phòng, Trưởng các Ban Tổng công ty, Người dai diện phần vốn của Tổng công ty tại Công ty cô phần Cảng dịch vụ dầu khí tổng hợp Phú Mỹ chịu trách nhiệm thị hành Quyết định này
Trang 2
Contract No.:
- Pursuant to the Civil Code of the Socialist Republic of Vietnam: and
- Pursuant to the function, capabilities and the Parties’ covenants to one another; THIS AGREEMENT is made effective as of the day of 2011 Day BETWEEN 2 VIỆT 7 Company Name : PETROVIETNAM TECHNICAL SERVICES CORPORATION STP
Address | : Sth Floor, PetroVietnam Tower, 1-5 Le Duan st, District 1, Ho
Chi Minh City, Viet Nam
Tel No : (84.8) 39102828 Fax No.: (84.8) 39102929
Legal Representative : MR NGUYEN HUNG DUNG
Designation : GENERAL DIRECTOR
(Hereinafter to be referred to as the “SELLER”)
AND
Company Name : YINSON HOLDINGS BERHAD
Address > No 25, Jalan Firma 2, Kawasan Perindustrian Tebrau IV,
81100 Johor Bahru, Johor
Tel No : 07-3555 2244 Fax No.: 07-355 2277
1 (S&P - Phu My Port JSC)
Trang 3Legal Representative : MR LIM CHERN YUAN Designation : EXECUTIVE DIRECTOR (Hereinafter to be referred to as the “BUYER”)
(The SELLER and BUYER are at times to be referred to as each the “PARTY” and collectively the “PARTIES”)
IN RESPECT OF
PTSC PHU MY PORT JOINT STOCK COMPANY [Company No.: 3501811766], a company incorporated on [04/04/2011] in accordance with the Vietnam Laws with a Charter Capital of Three Hundred Fifty Billion Vietnam Dong (350.000.000.000
VND) divided into Thirty Five Million (35.000.000) Shares and having a registered
address at Phu My I1 Industrial Zone, Tan Thanh District, Ba RiaVung Tau, Vietnam (hereinafter to be referred as the “COMPANY”)
RECITALS
(1) The PARTIES are vested with full power, authority and legal right to enter into and engage in the transactions contemplated under this Contract and to exercise their rights and perform their obligations hereunder and all corporate and other action: (i)
approving the terms of, and the obligations assumed by, and confirming agreement to
enter into this Contract, and (ii) specifying the individuals required to authorize the execution and performance of this Contract and the performance of obligations hereunder created
(2) The expressed obligations to be assumed by the PARTIES in this Contract are legal and valid obligations binding on them in accordance with the terms and
conditions hereof
(3) |The PARTIES have ail the requisite business licenses, permits, registration, power and authority (where applicable and necessary) to conduct its business as presently conducted and to execute, deliver and perform its obligations under this
Contract
WHEREAS, the above named SELLER and BUYER hereby agree to the terms and conditions set forth in this Contractwhich governs the PARTIES’ dealings and
relationship with one another such as follows:
2 (S&P - Phu My Port JSC)
Vig we
Trang 4DEFINITION & INTERPRETATION
In this Contract, unless the context otherwise requires, the expressions under this
Contract shall be defined and interpretedas have the meanings set out in Annexure A
herein
ARTICLE 1; THE SALE SHARES
The SELLER has irrevocably agreed to sell and the BUYER has agreed to purchase Forty Percent (40%) of issued and fully paid-up shares amounting to Fourteen
Million (14.000.000) Shares in the COMPANY held under legally valid share
certificateshereto together with all currently attached and hereafter to-be acquired
rights, title, and interests (hereinafter to be referred to as the “Sale Shares”) for the
total consideration of 182.000.000.000 Vietnam Dong (One Hundred Eighty Two BillionVND) at Thirteen Thousand Vietnam Dong (13.000 VND) per share to be paid
in accordance with ARTICLE 2(hereinafter to be referred to as the “Consideration” or “Purchase Price”) hereto free from all liens, charges, equities, and Encumbrances subject to all implied and express terms and conditions herein contained and the
BUYER becomes the Shareholder of the COMPANY with all legal rights and benefit as provided by the Vietnamese laws and the Charter
ARTICLE 2: PAYMENT OF THE PURCHASE PRICE
i The Purchase Price shall be paid by the BUYER either in the currency of USD(the exchange rate is to be fixed in accordance with the prevailing average
buying and selling rate of VietcomBank at the date of signing of this Contract)
or in the currency of VND in the following manner: -
a) First Milestone Payment : Within Fifteen (15) Calendar days from the date
of signing of this Contract, the BUYER shall pay One Million United States
Dollar (1.000.000 USD) or in VND (equivalent) to the SELLER;
b) Second Milestone Payment: Within Thirty (30) Calendar days from date of
signing of this Contract, the BUYER shall pay One Million United States
Dollar (1.000.000 USD) or in VND (equivalent) to the SELLER;
c) Third Milestone Payment: Within Ninety (90) Calendar days from the date
Trang 5iii
IV
ii
The release of the Third Milestone Payment by the BUYER to the SELLER is
subject to a condition precedent which is only upon the execution of the confirmation notice to transfer the Sale Shares in favour of the BUYER and the delivery of the Transfer Documents to the BUYER in accordance with ARTICLE
3.ii herein
The SELLER hereby undertakes that immediately upon the Confirmation of Transfer, the SELLER shall in its best endeavor, do all the necessary to proceed with the completion of the transfer in accordance with ARTICLE 3 herein Failure of which shall be considered a fundamental breach of this Contract on the SELLER’s part
The BUYER shall pay the Milestone Payments from a Capital Bank Account
which is to be set up by the BUYER in Vietnam in accordance with the
Vietnamese Laws
The BUYER shall fax or email the documentary evidences of the Milestone Payments to the SELLER
Subject to ii herein, failure on the part of the BUYER to fulfill the full Purchase Price in accordance with the period of payment herein, the SELLER shail be entitled to impose on the outstanding balance an interest at the rate
of Twelve Percent (12%) Per Annum to be calculated on daily basis from the
date of expiry of the Third Milestone Payment in the event the SELLER opts not to exercise its right to terminate this Contract under ARTICLE 8
ARTICLE 3: TRANSFER OF SALE SHARES
Subject to the provisions under this Contract, the SELLER shall at its own cost and expense immediately affect the transfer of the Sale Shares or cause the Sale Shares to be transferred to the BUYER or its nominee and/or permitted assigns as the BUYER shall in their absolute discretion deem fit (hereinafter to
be referred to as the “Transfer”)
The period for the confirmation notice to be signed by each party shall not
exceed Seven (7) Calendar Days from the date of the document receipt
The SELLER shall forward the following documents to the BUYER upon signing of
the confirmation notice to transfer: -
a) The duplicate copy of this Contract duly executed by the PARTIES;
b) | The duplicate copy of the official confirmation notice that has been signed by both PARTIES duly executed and issued by the COMPANY;
Trang 6iii
iv
Vi
Vii
(Hereinafter to be referred as “Transfer Documents” collectively)
The SELLER hereby warrants and represents that the said Transfer shall be considered to be confirmed, valid and enforceable under the Vietnamese Law upon the execution of the PARTIES and COMPANY of the above mentioned confirmation notice
The insertion of the BUYER in the Shareholders’ Book of the COMPANY shall
only be effected upon the SELLER’s receipt of the full Purchase Price in
accordance with ARTICLE 2 herein The original copies of the confirmation notice, the Shareholders’ Book and documentary evidence of the SELLER’s notification to the Relevant/ Competent Authority in respect of the Transfer shall be immediately forwarded to the BUYER upon the SELLER’s receipt of the full Purchase Price in accordance with ARTICLE 2 herein
Failure to comply with this Clause, the SELLER is in breach of this Contract The Company hereby warrants and represents to the BUYER whereby the submission of any documentsin respect of the said Transfer to the Relevant/ Competent Authority is for the sole purpose of notification of the said Transfer only The submission shall not to be considered as an act of the PARTIES in seeking the approval or consent of the Relevant/ Competent Authority of the said Transfer
The SELLER hereby warrants and represents to the BUYER whereby there is no known legal or corporate restriction on the part of the SELLER or COMPANY in
effecting the said Transfer For the avoidance of doubt, the said Transfer of
the Sale Shares from the SELLER to the BUYER and the enforceability as well as the validity of this Contract is not subject to any approval or consent of any
kind from any Relevant/ Competent Authority
In the event if the Purchase Price has been fully paid by the BUYER in accordance with ARTICLE 2 herein BUT the SELLER has not completed the
Transfer in accordance with this ARTICLE, the BUYER shall be entitled to impose on the SELLER an interest at the rate of Twelve Percent (12%) Per
Annum to be calculated on daily basis from the date the full payment of the Purchase Price is paid to the SELLER until the Completion of Transfer in the event the BUYER opts not to exercise its right to terminate this Contract under ARTICLE 8 |
In this Contract, the expression of “Completion of Transfer” shall mean the date of notification of the said Transfer with the Relevant/Competent
Trang 7ARTICLE 4: CONTRACT COMPLETION DATE
Upon the Completion of Transfer of the Sale Shares to the BUYER in accordance with
ARTICLE 3 and full payment of the Purchase Price by the BUYER in accordance with
ARTICLE 2 herein, this Contract is deemed to be completed (hereinafter to be
referred to as the “Contract Completion Date”) ARTICLE 5: BOM
i The BOM is the highest management body of the COMPANY and has the corporate management powers in the name of the COMPANY, and power to decide all matters (save for matters subject to the decision of the GSM) for the objectives and interests of COMPANY
ii Whereby the BOM consists of Five (5) members, of which:
1 The SELLER has the right to nominate Three (3) members; and
2 The BUYER or its nominee and/ or permitted assigns and/ or lawful successors has the right to nominate Two (2) members
ARTICLE 6: SELLER’S WARRANTY AND UNDERTAKING
i The SELLER hereby warrants and undertakes to the BUYER that:
a) it shall do all such things necessary to cause the Transfer of the Sale Shares (fully paid up and unencumbered) to the BUYER in accordance with
ARTICLE 3 of this Contract;
b) it has the power and authority required to enter into this Contract and perform fully its obligations under this Contract in accordance with its
terms and conditions;
c) this Contract is legal, valid and binding on it and is enforceable in
accordance with its terms and conditions;
d) it has not, prior to the date of this Contract, allowed to be disposed of or encumbered any of its shares or any of its assets;
e) that all monies, financial records, reports and billings in respect of COMPANY, prepared, maintained or submitted by it or any of its representatives, reflect properly and accurately the facts regarding all
activities and transactions that are the subject thereof, at the time
thereof;
— |
Trang 8f) the entry into and conclusion of this Contract will not result in:
e a violation or breach of any provision of its statutes, Charter or other
constitutional documents;
° a violation or breach of any applicable laws or regulations or of any order, decree or judgment of any court, governmental agency or regulatory authority,
g) no registration, recording, filing or notarization of this Contract, and no
other action whatsoever, is necessary or desirable to be taken, unless
otherwise provided by the applicable laws, to ensure the validity, enforceability or priority of the liabilities and obligations of it, or the rights as against it of any of the other PARTY or PARTIES;
h) since the incorporation of the COMPANY is due to the conversion from the
State-owned company formerly known as branch of PTSC Phu My Port (“PTSC Branch”), all assets (including titles, equipment, contracts and etc.) beneficially own by the said PTSC Branch as shown in _ its latestBalance Sheet (“Assets”) will be immediately transferred/ assigned to the COMPANY The transfer/ assignment of ail assets to the newly incorporated COMPANY shall be at the cost and expense of the SELLER as this particular obligation is deemed to be a “should do” obligation on the
part of the SELLER
In particular, with regards to the Land Lease Agreement entered into in Vung
Tau dated July 2003 between “CONG TY XAY DUNG & PHAT TRIEN DO THI TINH BA RIA - VUNG TAU (UDEC)” and “CONG TY DICH VU KY THUAT DAU KHI (PTSC)” in respect of
a piece of a land known as Industrial Zone, Phu My 1, Ba Ria - Vung Tau), the title to
the beneficial ownership, ail interests and benefits under the said Land Lease Agreement shall be transferred/ assigned to the COMPANY at the cost and expense of the SELLER (“Land Lease Agreement”)
The SELLER hereby undertakes to the BUYER that the transfer/ assignment of all the aforesaid assets and the abovementioned Land Lease Agreement (land-use right) to the COMPANY will be completed within Two (2) Years from the date of
signing this Contract and the SELLER shall be responsible for any legal issues of the
Land Lease Agreement in respect of the land-use right until the completion of the
transfer/assignment Failure to comply with this undertaking shall be a fundamental
breach of this Contract
Trang 9iff
ii
The SELLER undertakes that it will at all times act in good faith in all affairs with the BUYER and shall not engage the COMPANY in or commit the COMPANY to any dealings which may have an adverse or substantial effect on the financial position of the COMPANY without taking into consideration the interests and disagreement of the BUYER as a major shareholder in the COMPANY
It is expressly understood that the BUYER has relied on the warranties and undertakingsprovided by the SELLER in entering this Contract The PARTIES agree that the remedy in respect of any breach of this warranties and undertakings shall be a claim for damages (actual damage need not be proven) and to enforce any rights in the event if the BUYERopts not to exercise its right to terminate this Contract under ARTICLE 8
The SELLER shall indemnify and save the BUYER harmless against any and all
reasonable costs, expenses (including reasonable tegal fees and costs), losses, damages, and liabilities incurred or suffered, directly or indirectly, by the
SELLER, resulting from, or attributable to, a material breach of, or
misstatement by, it in any one or more of the warranties or undertakings made in or pursuant to this Contract
ARTICLE 7: DISPOSAL OF SHARES BY THE SELLER
The SELLER hereby warrants and undertakes whereby the disposal of any of its
Fifty One Percent (51%) Shares held by it in the COMPANY (“Offered Shares”)
are subject to the “first right of refusal” of the BUYER This right of the BUYER herein will only arise if and when the SELLER decides to dispose of its Shares in the COMPANY
“first right of refusal” shall mean:
The SELLER shall inform its intention to dispose of the Offered Shares to the
BUYER in writing and negotiate with the BUYER by convening informal meetings when necessary (“Letter of Intention”)
The BUYER will have Fourteen (14) Calendar Days from the date of the Letter
of Intentionto make an offer in writing to the SELLER (“Letter of Offer”) to
state the proposed price and terms for the Offered Shares In the event if the BUYER does not issue a Letter of Offer or if the Parties are unable to reach to a final agreement for the price and terms of the Offered Shares, the SELLER shall be able to dispose of the Offered Shares to any third party in accordance with the provisions of the Charter and the price and terms when offer to such third party shall not be respectively less than the price and more favorable
than the terms proposed by the BUYER in the Letter of Offer or the price and
terms offered by the BUYER subsequently in any meeting of the Parties
Trang 10iti
ii
This ARTICLE also applied for the BUYER if they want to dispose its part of full
40% Shares in the COMPANY in which event, the SELLER shall be entitled to the
first right of refusal
ARTICLE 8: DEFAULT AND TERMINATION
At any time and without prejudice to any other rights and remedies of the PARTIES, each PARTY may at its absolute discretion by service of a notice on the other PARTY to terminate this Contract in the event if:
any statutory provision or regulation under the Vietnam Laws prohibits,
_restricts or imposes adverse conditions upon the dealings of the Sale Shares
which is beyond the knowledge, contemplation and control of the SELLER; unilateral termination after the signing of this Contract by any of the PARTIES without any legal justification;
any of the PARTIES breaches any provisions under this Contract;
prior to the Contract Completion Date, a PARTY, being a company, and/or the COMPANY enters into liquidation, whether compulsory or voluntary, the other PARTYmay annul the sale and purchase of the Sale Shares and forthwith rescind this Contract
Upon such termination in accordance with the provisions hereunder:
a the SELLER is to refund to the BUYER all monies paid in accordance with the provisions under this Contract free of interest within Two (2) Banking
Days from the date of the SELLER’s receipt of the termination notice;
Notwithstanding, in the event if the termination is due to the fault of the
SELLER by virtue of the above said i.b., i.c and i.d, the BUYER shall be entitled to:-
i) a compensation ofTen Percent (10%) out of the Purchase Price; and ii) impose on the SELLER an interest at the rate of Twelve Percent (12%)
Per Annum on any monies paid to be calculated on daily basis from the date the monies were paid in accordance with the provisions of this
Contract;
Trang 11in addition to the above mentioned refund of any monies paid and any
other remedies that may be available to the BUYER in law and equity
Notwithstanding, in the event if the termination is due to the fault of the BUYER by virtue of the above said i.b and i.c, the SELLER shall be entitled to a compensation of Ten Percent (10%) out of the Purchase Price in addition to any other remedies that may be available to the SELLER in law and equity
b the BUYER shall at its own cost and expense re-transfer to the SELLER the
Sale Shares if the same have been transferred to the BUYER
Notwithstanding, in the event if the termination is due to the above said i.b, i.c
and i.d,any cost and expense to be incurred by the BUYER for such re-transfer shall be
reimbursed by the SELLER
ARTICLE 9: NON-COMPLETION OF TRANSFER
i In the event if the Transfer is not/ cannot be completed for any reason whatsoever in accordance with ARTICLE 3, save and except where there is any
default, willful neglect, omission or blameworthy conduct on the part of any of
the PARTIES, each PARTY shall use its best endeavors: -
a) To ascertain the cause or reason for such non-acceptance or rejection or non-registration, as the case may be;
b) To rectify, remedy and/or overcome such cause or reason; and
c} To cause the Transfer to be accepted for registration and/or registered, and in the event that such cause or reason cannot be or is not rectified,
remedied and/or overcome within a period of Sixty (60) Days from the date of such non-completion is made known to the BUYER, this Contract shall not be proceeded with and the BUYER shall be entitled for the refund of the Purchase Price or any part of it (if the same has been paid to the SELLER) without interest in the form of debt
due and owing by the SELLER to the BUYER and/or its nominee(s) whereupon this
Contract shall be terminated and cease to be of any further effect but without prejudice to any right or claim which either PARTY may be entitled to against the other PARTY in respect of any antecedent breach of this Contract In the event that
the non-completion of the Transfer is due to the default, willful neglect, omission or
blameworthy conduct of the SELLER which inevitably leads to the termination of this Contract, the BUYER shall have the right to seek the remedy under ARTICLE 8.ii.a herein uncontested by the SELLER
Trang 12ARTICLE 10: SPECIFIC PERFORMANCE
As an alternative option besides the termination option in accordance with ARTICLE 8 herein, each of the PARTIES hereto reserves the right to be entitled to specific performance of this Contract provided that they have respectively complied with all
the terms and conditions and obligations herein contained
ARTICLE 11; APPLICABLE LAW
i Applicable Law
This Contract and the Charter shail be construed under and governed by Vietnamese Law
ii Compliance with Laws
The PARTIES and COMPANY shall comply with Vietnamese Law and all rules, requests,
orders, statutes and judgments of any Relevant/ Competent Authority that have an | impact on,and are enforceable against, the PARTIES or COMPANY, including, without limitation, laws and orders related to business relations with government officials
iii Subsequent Changes in Law
In the event of any change in Vietnamese Law (whether by amendment, replacement,
interpretation or implementation, each a “Change”):
a If the Change is more favorable to COMPANY or the PARTIES than is the relevant Vietnamese Law in effect on the date of this Contract, COMPANY
and the PARTIES shall use their best efforts to obtain approval for ensuring
that COMPANY and the PARTIES will receive the benefits of such Change; and
b If such Change adversely affects the PARTIES’ economic benefits or those of COMPANY under this Contract, directly or indirectly, then COMPANY and
the PARTIES shall request that the applicable Relevant/Competent Authority take all appropriate measures under Vietnamese Law to maintain the economic benefits of the PARTIES and COMPANY hereunder
ARTICLE 12; DISPUTE RESOLUTION
Trang 13-be finally settled by the Vietnam International Arbitration Centre (VIAC) at the Vietnam Chamber of Commerce and Industry in accordance with its Rules of Arbitration The number of arbitrators shall be three (03) of whom one (01) arbitrator shall be appointed by the SELLER; one (01) arbitrator shall be appointed by the BUYER and the remaining arbitrator who will be the chairman of arbitral tribunal shall be appointed by the Chairman of VIAC If either PARTY fails to make an appointment within Fourteen (14) Days of a request to do so by the other, their arbitrator shall be appointed by the Chairman of the VIAC The place of the arbitration shall be in Ho Chi Minh City, Vietnam The language of the arbitration shall be in Vietnamese If the VIAC does not provide an English interpreter during the arbitration process, the BUYER shall be allowed to appoint its own interpreter to be present and take part in the arbitration process The written decisions and conclusions with respect to the disputes (including as to costs) so settled shall be final and binding on the PARTIES to the arbitration proceedings, and confirmation and enforcement of the awards so rendered may be obtained and entered in any court having jurisdiction thereof All expenses in connection with the dispute resolution process shall be borne by the losing party
ARTICLE 13: ENTIRE AGREEMENT
This Contract sets out the entire agreement and understanding between the PARTIES
hereto and supersedes and cancels in all respects all previous agreements and
undertakings, if any, between the PARTIES hereto with respect to the subject matter hereof No variation of this Contract of whatsoever nature shall be made or purported
to be made by any PARTY or PARTIES (nor shalt any variation or purported variation be
valid or enforceable) unless the same is in writing and duly agreed to and executed by all the PARTIES concerned
ARTICLE 14: AMENDMENT
It is hereby expressly agreed that no amendment, modification, variation and/or alteration shail be made to this Contract unless otherwise made in writing by the
PARTIES hereto
ARTICLE 15: WAIVER
i No right under this Contract shall be deemed waived, unless made or confirmed in writing and signed by or on behalf of bothPARTIES |
ii A waiver by a party shall be without prejudice to its rights or remedies in respect of any other breach of this Contract by either of the PARTIES
12 (S&P - Phu My Port JSC)
Al
Trang 14li Any failure by a party to enforce any of the provisions of this Contract or any forbearance, delay or indulgence granted by that party to the other party shall not be construed as a waiver of that party's rights under this Contract
ARTICLE 16: SEVERABILITY
Any term, condition, stipulation, provision, covenant or undertaking in this Contract which is illegal, void, prohibited or unenforceable shall be ineffective to the extent of such illegality, validness, prohibition or unenforceability without invalidating or rendering illegal, void or unenforceable the remaining terms, conditions, stipulations, provisions, covenants or undertakings herein contained
ARTICLE 17: NOTICE
All notices shall be in writing and shall be deemed to be sufficiently served by sending the same through the post by registered mail to the addresses herein given and shail
be deemed to have been received in the normal course of posting and/or if such
notices are delivered by hand
ARTICLE 18: FORCE MAJEURE
The PARTIES shall be released from their respective, obligations in the event of
national emergency, war, prohibitive governmental regulation or if any other cause
beyond the reasonable control of the parties or any of them renders the performance of this Contract impossible in the event the force majeure event cannot be ceased within Thirty (30) Days from the date of its occurrence, where upon the expiry of the Thirty (30) Days period, this Contract shatl be terminated and all monies paid hereunder shall be refunded forthwith to the BUYER free of interest and the BUYER shall at its own expense effect the re-transfer of the Sale Shares to the SELLER (if the same has been transferred to the BUYER)and neither PARTY shall have any further claim against the other provided that this Article shall have effect only if either party serves a notice on the other that it will have effect
ARTICLE 19: RIGHTS AND ACCESS TO INFORMATION
The SELLER agrees that, at all times, including in case of any dispute or difference between or among any PARTIES, whether subject to arbitration or not, the BUYER’sduly authorized persons, including the Authorized Representatives, shall have, at all reasonable times during normal business hours and with reasonable
Trang 15review and inspect all books, records, financial statements, documents, agreements
and all physical plants, facilities and other assets and properties of COMPANY, including the right to make copies (at the expense of the BUYER) of any written material included in the foregoing and further, at its own risk, cost and expense, and after giving reasonable prior notice to COMPANY, to inspect and observe the
operations of COMPANY
ARTICLE 20: LIMITED LIABILITY
Since the COMPANY is a joint stock company, the liability of each PARTY to COMPANY and the creditors of COMPANY at any date shall be limited to the amount paid in relation to the Shares to which such PARTY has subscribed The PARTIES shall share the profits of COMPANY in proportion to their respective Share Percentage, and their risks and losses shall be limited to their respective Share Percentage in the Charter Capital of COMPANY
ARTICLE 21: CONFIDENTIALITY
i Confidentiality
Each of the PARTIES undertakes that such PARTY and its employees and
Authorized Representatives shall at all times protect the confidentiality of this
Contract, the Charter, and all information, whether in written or any other
form,which is considered confidential by or the PARTY providing the same (as advised
to the Parties), or which information by its nature ought to be regarded as confidential, classified, restricted or secret, including, without limitation, any
business information in respect of any other PARTY which is not directly applicable or relevant to the transactions contemplated by this Contract (the “Confidential Information”) to which they may have had, or may have, access during the course of the COMPANY’s operations Nothing contained herein, however, shall apply to information which:
a) is disclosed by a PARTY to a third party with the prior written approval of the other PARTY;
i) at the time of its disclosure is in the public domain, as evidenced by
printed publications or otherwise;
ii) after its disclosure, becomes part of the public domain through no fault
or willful misconduct of any PARTY or its representatives /employees;
iii) can be shown, by conclusive written evidence, as being lawfully in a
PARTY’s possession without confidentiality obligations to any other
PARTY at the time of its disclosure by another PARTY;
Trang 16iv) is obtained by a PARTY from a third party who is lawfully in possession of such information without confidentiality obligations; or
v) is required to be disclosed by a PARTY by any court or other Relevant/
Competent Authority under applicable laws and regulations; provided,
however, that no such disclosure shall be made unless and until the prior written consent, to the extent permitted by applicable laws and regulatory authorities, of each PARTYto which such information relates, - is obtained
In the event of liquidation or dissolution of COMPANY, all such Confidential Information shall be, and shall remain, the exclusive property of the respective PARTY to which such Confidential Information originatly belonged
ii Disclosure
Notwithstanding the foregoing, each of the PARTIES which is a legal entity may
disclose Confidential Information to:
1 A recognized national securities exchange, as may be required for Tax or
accounting purposes, provided that the Party, to the extent permitted by
applicable law, regulatory authority or recognized national securities
exchange has given the other Parties immediate notice of such requirement
and advance notice of the nature, content, and timing of such disclosure
2 A PARTY’s professional advisors and consultants, provided that such PARTY, as applicable, receives a confidentiality undertaking in customary written
form from the recipient of the Confidential Information; —
Each PARTY shall maintain the most limited possible distribution of Confidential
Information relating to the COMPANY, on a need-to-know basis consistent with such PARTY’s rights and obligations under the Agreement
iii Announcements
Except as required by any applicable law or regulation, or the rules or regulations of
any recognized national securities exchange, no PARTY shall make, and each
PARTYshall cause its affiliates not to make, any public announcement or filing with or notification to any Relevant/Competent Authority regarding the other PARTIES,
COMPANY or this Contract,without the prior written consent of all of the PARTIES If a
PARTY or its affiliate is required to make such an announcement, filing or notification pursuant to any applicable law or regulation or rules or regulations of any recognized national securities exchange, it shall, to the fullest extent possible, in tight of such requirements, provide the other PARTY at least Ten (10) Working Days’ advance notice of such announcement, filing or notification and a copy of the same, and shalt entertain in good faith suggestions from the other PARTIES regarding the
announcement, filing or notification
Trang 17ARTICLE 22: COUNTERPARTS
This Contract may be executed in separate counterparts, and such counterparts when executed and delivered shall be an original
Article 23: LANGUAGE
The PARTIES shall execute Four (4) Copies of this Contract each in English
ARTICLE 24: BINDING PROVISIONS
This Contract shall be binding upon and enforceable against the permitted assigns,
successors-in-title, heirs, executors and/or administrators of the PARTIES hereto
ARTICLE 25: ADDITIONAL CONDITION
The BUYER hereby warrants and undertakes that it will not affect any Disposal of Shares to any third party for a period of One (1) Year from the date of signing of this
Contract
ARTICLE 26: ATTACHMENTS AND ANNEXURES
The PARTIES hereby agree and acknowledge whereby the attachmentsand annexures herein shall be binding on the PARTIES and shall form part of this Contract The documents to be included under this Contract as attachments are such as:-
i A certified true copy of the Business Registration Certificate of the COMPANY; ii A certified true copy of the existing duly signed and stamped COMPANY
Charter;
iii A certified true copy of the Land Lease Agreement as stipulated in ARTICLE 6.i.h);
iv The latest Balance Sheet of the PTSC Branch and Balance Sheet of the
COMPANY as from 1* April 2011;
Vi The finalized Hand-Over Minute as between the PTSC Branch and the
COMPANY;
vii The audited accounts of the PTSC Branch;
Trang 18viii The quarterly accounts of the COMPANY;
viii The latest accounts of the COMPANY for the month of May, year 2011
The attachments and annexures herein mentioned shall be attached during the execution of this Contract
NRHHRNNNRRRBRRRNRRNGHRBẶRNGBSBRNRPRBRHESRNRNNRNNWNENHNGERNEWGERNNEERNENEBRNNI-RjNMjNHJRBIKR&MẶMPERNRSERRPBNNWESWNSERNHmRBHTïRïẶN1ïRBẶ1NBEfï
[The remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, each of the PARTIES has caused this Contract to be executed
Trang 2010 11 12 13 14 15 16 ANNEXURE A
DEFINITION & INTERPRETATION
“COMPANY” means PTSC Phu My Port Joint Stock Company
“PTSC Branch” means the branch of PTSC Phu My Port which has been converted to the COMPANY
“Contract” means this Sale & Purchase of Unlisted Stock
“Calendar Days” means all of the days on the calendar, including Saturdays
and Sundays |
“Banking Days” means the days when all the banks in Vietnam are open for business
“VND” means Vietnam Dong “USD” means United States Dollar
“Share” means ordinary or common share in the capital of the COMPANY “Sale Shares” has the meaning as provided under ARTICLE 1
“Shareholder” means any party or person who is holding a percentage of Shares in the COMPANY
“Confirmation of Transfer” has the meaning as provided under Article 3.ii
“Completion of Transfer” has the meaning as provided under ARTICLE 3.viii
“Contract Completion Date” has the meaning as provided under ARTICLE 4 “Transfer” has the meaning as provided under ARTICLE 3.i
“Disposal” means to give, sell, assign, transfer, convey “Encumbrance” means in relation to any property:
Trang 2117 18 19 20 21 22 23 24 25
(b) a license, lease, easement or restrictive covenant affecting the property; (C) a caveat, garnishee order, writ of execution, right to set-off, assignment of
income or monetary claim affecting the property;
(d) a preferential interest, title retention, or other estate, interest, claim or arrangement affecting the property;
(e) a contract of sale or option to purchase or acquire the property; or (f) an agreement to grant, create, allow or registered any of these
“Relevant/ Competent Authority” means any or all of the followings: the
National Assembly of Vietnam, the Standing Committee of the National Assembly of Vietnam, the President of the State of Vietnam, the Government of Vietnam, the Prime Minister, the Government Office, any Ministries, any
People’s Committees or any of their agencies, department or bodies, and any
and all other committees, ministers, councils, agencies, bodies or officers
whose consent, approval, registration, commitment, involvement or consultation is required or desirable in the opinion of COMPANY and/or the
Shareholders for anything or matter referred to in or contemplated by this Contract and the Charter;
“Authorized Representative” means any person or party nominated by the
Shareholders to represent them in the COMPANY in the dealings of all affairs of the COMPANY
“Charter” means the COMPANY Charter in the form agreed or to be agreed, to be amended from time to time
“Charter Capital” means the charter capital of the COMPANY as registered under its Business Registration Certificate and/ or Investment Certificate from time to time
“GSM” means the General Shareholders’ Meeting of the COMPANY “BOM” means the Board of Management of the COMPANY
“Business” means all the businesses within the scope of business activities registered under the Business Registration Certificate of the COMPANY and as
stated under Article 3 of the Charter
“Unanimous Approval” means the affirmative approval of all Shareholders in the COMPANY
In this Contract, unless the context indicates otherwise: 20 (S&P - Phu My Port JSC)
:AN
? THU
:HÍ
Trang 2226 In this Contract, unless the context indicates otherwise:
(a) reference to a party includes that party's successors and permitted assigns;
(b) words expressed in the singular include the plural and vice versa; (Cc) (d) (e) (f) (g)
words expressed in any gender include every gender;
if any word or phrase is given a defined meaning, any other part of speech or grammatical form in respect of that word or phrase has a corresponding meaning; headings are inserted for convenience only and do not affect interpretation; the words “person” includes a partnership and a body whether corporate or otherwise;
reference to any statute, statutory provision or other legislation (whether
primary or subordinate) is to a statute or other legislation as amended or
replaced from time to time;
if any conflict arises between the terms and conditions contained in the
clauses of this Agreement and any part of the Annexure (and attachments if any), the terms and conditions of the clauses prevail
21 (S&P - Phu My Port JSC)