SHARE TRANSFER AGREEMENT TEMPLATE
DRAFTING BATTLE-TESTED CONTRACTS
APPENDIX 2
SAMPLE CONTRACT TEMPLATES
(PART II)
I. SHARE TRANSFER AGREEMENT TEMPLATE
Date: … Month: … Year: …
CORPORATION [SELLER]
and
COMPANY [BUYER]
______________________________________
SHARE TRANSFER AGREEMENT
for the transfer of 60% of the total shares in
CORPORATION [TARGET COMPANY]
______________________________________
THIS SHARE TRANSFER AGREEMENT dated … day of … month … year … (“this Agreement”), is made
BETWEEN
- [SELLER] CORPORATION
Address: …
Phone: …
Fax: …
Business Registration Certificate No.: …
Represented by: …
Title: …
(the “Seller”); and
- [BUYER] COMPANY
Registered Office: …
Phone: …
Fax: …
Certificate of Incorporation No.: …
Represented by: …
Title: …
(the “Buyer”)
The Seller and the Buyer each referred to as a “Party” and collectively as the “Parties.”
PREAMBLE
(A) According to the Business Registration Certificate No. … issued by the Department of Planning and Investment of Ho Chi Minh City on … day … month … year … (“BRC”) granted to [TARGET COMPANY] Corporation (“the Company”), the current charter capital of the Company is VND 1,070,000,000,000 (“Charter Capital”) with 107,000,000 common shares at a par value of VND 10,000 per share (“Shares”), and all Shares have equal dividend distribution and voting rights.
(B) The Company has the right to develop a land area of xxx m2 located at Ward xx, District xx, Ho Chi Minh City as specified in Appendix 1 (“the Land”) for the development of [project details to be supplemented later] (“the Project”).
(C) As of the date of signing this Agreement, the Seller is the legal and beneficial owner of 963,000,000 Shares, accounting for 90% of the total Shares of the Company. The Seller agrees to sell 642,000,000 Shares, equivalent to 60% of the total Shares of the Company to the Buyer under the terms and subject to the conditions set forth below.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
- Definitions and Interpretation
1.1. In this Agreement, unless the context otherwise requires:
– “Agreement” means this Agreement, including all appendices attached hereto;
– “Amended BRC” means the amended Business Registration Certificate showing the Buyer as the legal owner of the transferred Shares in a form and content compliant with Vietnamese law;
– “BRC” means the Business Registration Certificate No. … of the Company, issued on … day … month … year … by the Department of Planning and Investment;
– “Business Day” means a day (not being a Saturday or Sunday) when banks and stock exchanges are open for public trading in Vietnam;
– “Amended Charter” means the amended charter of the Company in accordance with the terms and conditions agreed upon by the Parties and approved by the Department of Planning and Investment;
– “Charter Capital” means the charter capital of the Company as of the date of this Agreement, which is VND 1,070,000,000,000;
– “Company” means [Target Company] Corporation;
– “Completion Date” means the date confirmed by the Lawyers pursuant to Article 4.2;
– “Transfer Price” means the amount in VND equivalent to […] USD paid by the Buyer to the Seller for the transfer of the Shares under this Agreement; [to be inserted later];
– “DPI” means the Department of Planning and Investment of Ho Chi Minh City;
– “Encumbrances” means any mortgage, pledge, charge, lien, option, restriction, pre-emption right, right of first refusal, right or interest of any third party, retention of title, or any other security interest or priority arrangement of any kind, and any agreement or obligation to create or grant any of the foregoing;
– “Escrow Account” means an interest-bearing bank account jointly opened by the Buyer and the Seller with the Escrow Agent, designated as an escrow account used by the Buyer and the Seller for the purpose of implementing the Project as stipulated in this Agreement and disbursed in accordance with the conditions of this Agreement and the Escrow Agreement (to be discussed and executed together with this Agreement);
– “Escrow Agent” means any commercial bank licensed to operate in Vietnam and agreeing to fund the Project in accordance with this Agreement and other related conditions agreed upon by the Parties;
– “Land” means the land area of […] square meters located at Ward xx, District xx, Ho Chi Minh City. The location of the Land is identified on the map attached as Appendix 1; [to be supplemented later];
– “Loan Agreement” means a loan agreement signed between the Seller and the Company concerning the shareholder loan, including provisions on repayment from project financing after the Company receives a duly issued letter of commitment from a commercial bank licensed in Vietnam agreeing to fund the Company’s project;
– “Project” means [to be supplemented later];
– “Project Financing” means a minimum loan of […] USD granted by the Bank or any other bank to the Company for the purpose of implementing the Project;
– “Bank” means [Lender] Joint Stock Bank;
– “Transferred Shares” means 642,000,000 shares owned by the Seller, equivalent to 60% of the Company’s total shares, which the Seller agrees to transfer to the Buyer under this Agreement;
– “Land Financial Obligations” means the financial amounts and obligations related to the right to use the Land for the Project, including but not limited to land compensation costs, resettlement costs, pre-operating costs, infrastructure costs (excluding land tax levied on the sale of real estate/products of the Project, which shall be borne by the Company) that have been or need to be paid to the Government under current laws to obtain the right to use the Land for the Project;
– “Shareholder Loan” means the loan provided by the Seller to the Company under Article 5.4;
– “Shares” means 1,070,000,000 common shares of the Company with a par value of VND 10,000 representing the total issued and fully paid-up share capital of the Company;
– “Lawyers” means [Lawyer] law firm;
– “Buyer” means [Buyer] Company;
– “Seller” means [Seller] Corporation;
– “Warranties” means the agreements, obligations, warranties, representations, and covenants of the Seller set forth in Appendix 2; and
– “Force Majeure Event” means any cause beyond the control of a Party, which permanently or temporarily prevents or materially hinders the performance of the Party’s obligations under this Agreement, the Loan Agreement, or the Escrow Agreement, including but not limited to nationwide emergencies, war, hostilities, riots, civil commotion, severe currency crisis in any financial market or banking system, damage by earthquakes, floods, fires, epidemics, outbreaks of disease or other public health hazards, labor or material shortages, industrial disputes, and legal restrictions on investment or remittance.
1.2. The headings and table of contents in this Agreement do not affect its interpretation.
- Transfer Price
2.1. Subject to the terms and conditions of this Agreement, the Seller agrees to transfer as the beneficial and legal owner and the Buyer agrees to pay the Transfer Price to purchase the Transferred Shares from the Seller free from any Encumbrances and with all benefits, rights, and entitlements arising or attaching to the Transferred Shares on the Completion Date.
2.2. The Transfer Price for the purchase of the Transferred Shares shall be paid by the Buyer in cash to the Seller in the manner specified in Article 5.
- Escrow Account
3.1. The Buyer shall transfer:
(a) The amount of […] USD, equivalent to 20% of the Transfer Price into the Escrow Account within 07 Business Days from the date of signing this Agreement or the Escrow Account Agreement, or the payment of the Escrow Agent fees under the Escrow Account Agreement, whichever occurs later; and
(b) The amount of […] USD, equivalent to 80% of the Transfer Price into the Escrow Account within 07 Business Days after:
(i) The Seller provides a valid copy of the receipt for submitting the proper documents to the DPI to apply for the Amended BRC compliant with the application documents for the Amended BRC, this Agreement, the Shareholder Agreement, and the Amended Charter to recognize that the Buyer has received the transfer and ownership of the Transferred Shares as reflected in the Amended BRC; and/or
(ii) The DPI issues a confirmation letter stating that the Company does not need to apply for an investment certificate for the Project despite the Buyer being a foreign investor directly investing in the Company through the purchase of 60% of the Company’s total shares;
Whichever occurs first.
3.2. For the amounts received under Article 3.1(a), if the Parties do not sign the Shareholder Agreement, Loan Agreement, and Amended Charter for any reason by the end of 3 months from the date of signing this Agreement, the Buyer shall have the sole discretion to determine whether to accept any extension period. In the event the Buyer:
(a) Does not accept any extension period, the Buyer shall instruct the Escrow Agent to transfer all funds in the Escrow Account, including any interest, to any account of the Buyer, and then the Escrow Account shall be closed and the Escrow Agent shall be released from its obligations under the Escrow Account Agreement; or
(b) Accepts an extension period, the Buyer shall notify the Escrow Agent of the extended date and shall send a copy of such notice to the Seller. Upon the expiration of the extended period, the Buyer shall have the sole discretion to determine whether to accept any further extension period.
The Seller agrees to and acknowledges the Buyer’s right to act as specified in Article 3.2 (a) and (b) above.
3.3. If the Buyer exercises its rights under Article 3.2(a), this Agreement shall be deemed terminated under Article 7.1(c).
- Conditions for Disbursement from the Escrow Account
The following documents shall be provided to the Lawyers as conditions for disbursement from the Escrow Account, which the Seller must fully comply with:
(a) Notwithstanding Article 3.1(a), for the disbursement of 20% of the Transfer Price from the Escrow Account, within 07 Business Days from the date of signing this Agreement, the Loan Agreement, the Shareholder Agreement, and from the date of the Lawyer’s confirmation as specified in Article 4.2 for the following documents:
(i) A meeting minute and resolution of the General Meeting of Shareholders of the Company approving the following:
– The Seller’s transfer of the Transferred Shares to the Buyer; and
– Adoption of the Amended Charter.
(ii) A meeting minute and resolution of the Board of Directors approving the duly executed Loan Agreement between the Seller and the Company.
(iii) A complete official dossier prepared in accordance with Vietnamese law, duly signed by the current members and the legal representative of the Company, submitted to the competent state authorities applying for the Amended BRC to record the Buyer’s ownership of the Transferred Shares and apply for the issuance of the Amended BRC.
(iv) A meeting minute and resolution of the Board of Directors of the Seller approving the Seller’s transfer of the Transferred Shares to the Buyer.
(v) A meeting minute and resolution of the Board of Directors of the Seller approving the duly executed Loan Agreement between the Seller and the Company.
(vi) A certificate issued by the competent state authorities confirming that the Seller has fully paid the compensation for the right to use the Land into the District xx State Treasury.
(b) For the disbursement of 80% of the Transfer Price from the Escrow Account as per Article 3.1(b), within 07 Business Days from the date of the Lawyer’s confirmation as specified in Article 4.2 for the following documents:
(i) The Seller’s commitment that the Land has been fully compensated and is free from Encumbrances.
(ii) The Amended Charter duly executed by the legal representative of the Company and all shareholders of the Company.
(iii) A notarized excerpt of the Company’s shareholder register proving the Seller’s ownership of the Transferred Shares.
(iv) Share certificates for the Transferred Shares issued in the Buyer’s name proving the Buyer’s ownership of the Transferred Shares.
(v) A valid copy of the Amended BRC of the Company showing the Buyer as a shareholder of the Company under this Agreement.
(vi) A project financing commitment letter from a commercial bank licensed to operate in Vietnam.
(vii) [Additional technical requirements to be supplemented later]
4.2. Upon receipt of all the documents specified in Article 4.1, the Lawyers shall review the checklist of documents (without assessing the content) and shall issue a confirmation letter to the Parties within 3 Business Days from the date of receipt of the documents from the Seller. The date the Lawyers issue the confirmation letter to the Parties shall be deemed the Completion Date corresponding to each disbursement of the Transfer Price from the Escrow Account. Any delay by the Lawyers in issuing the confirmation letter to the Parties as specified in this Article may result in corresponding extensions as provided in Article 4.3 below.
4.3. In the event that Articles 4.1 and 4.2 are not complied with within the prescribed timeframe, the Parties shall make good faith efforts to resolve the issue within 30 Business Days from the expiration of the timeframe specified in Articles 4.1 and 4.2, and if not resolved, Article 7 shall apply.
- Method of Payment for the Transfer Price to the Seller
5.1. When the conditions as stated in Article 4.1(a) are satisfied, the amount of 20% of the Transfer Price shall be immediately and without delay disbursed from the Escrow Account to the account designated by the Seller, with the details as follows:
[provide bank account details]
The Seller shall not delay in securing this amount, and it shall only be disbursed for the Seller’s full use after the conditions and terms as stated in Articles 4.1(b) and 5.2 of this Agreement are met.
5.2. When the conditions stated in Article 4.1(b) are satisfied, the amount of 80% of the Transfer Price shall be disbursed to the Company’s bank account. The remaining amount (if any) in the Escrow Account after the above disbursement shall be returned to the Buyer in the manner specified by the Buyer. At the same time, the 20% of the Transfer Price as mentioned in Article 5.1 above shall be fully released to the Seller.
5.3. Within 03 Business Days after the Company receives the project financing commitment letter from a commercial bank licensed to operate in Vietnam, the 80% of the Transfer Price shall be disbursed from the Company’s bank account to the Seller’s bank account without any refusal, obstruction, or objection from the Buyer.
5.4. After the disbursement of funds from the Escrow Account as stated in Articles 5.1, 5.2, and 5.3 above, the Buyer shall be deemed to have fully paid the Transfer Price and shall be considered to have fully completed all of the Buyer’s obligations under this Agreement.
5.5. For the purposes of Article 5.2, the Seller hereby grants an irrevocable authorization to the Buyer to transfer funds to the Company’s bank account. The funds disbursed to the Company under Article 5.2 shall be regarded as a Shareholder Loan from the Seller, and the terms and conditions of the Shareholder Loan shall be stipulated in the Loan Agreement.
This Shareholder Loan shall be considered due for immediate and unconditional repayment after the Company receives the project financing commitment letter as specified in Article 5.3 above.
- Warranties and Indemnities
6.1. Warranties
(a) The Seller hereby represents and warrants to the Buyer as set forth in Appendix 2 of this Agreement on the date of signing this Agreement, during the period from the signing date to the Completion Date, and confirms that the Buyer is entering into this Agreement in reliance on each of the warranties.
(b) Each warranty shall be construed as a separate and independent warranty and, unless expressly provided otherwise, shall not be limited by reference to any other warranty.
(c) If the Buyer becomes aware of any breach of the warranties or if the Seller notifies the Buyer before the Completion Date, the Buyer shall have the absolute right, without any liability to the Seller, to terminate this Agreement by notifying the Seller of such termination (without prejudice to any rights the Buyer may have under law).
(d) The Seller undertakes that, with respect to any representation, warranty, or statement as to the knowledge and/or belief of the Seller, the Seller has made all reasonable inquiries regarding the subject matter of such representation, warranty, or statement and that the Seller has no knowledge, information, or belief that the subject matter of such representations, warranties, or statements is materially untrue, incomplete, or inaccurate.
(e) Each provision in this Agreement and each undertaking shall be construed separately and independently, and the Buyer’s rights and remedies in respect of any breach or breaches of the warranties or undertakings shall not be affected or terminated by the completion of the sale and purchase of the Transferred Shares hereunder, or by the Buyer’s election to terminate or not to terminate this Agreement, or by any other event or matter, except as specifically waived or released in a duly authorized writing by the Buyer.
6.2. Indemnity
The Parties hereby agree to indemnify and hold harmless the other Party or any assignee thereof against any and all losses, damages, claims, and demands arising from one or more breaches of the representations, warranties, and undertakings set forth in this Agreement and Appendices 2 and 3 or any material misrepresentation under the terms of this Agreement and Appendices 2 and 3, or for any breach of any term and condition of this Agreement.
The Parties hereby agree that if either Party is deemed to be in breach of any representations, warranties, or obligations under this Agreement, the non-breaching Party shall promptly and without delay notify the breaching Party in writing of such breach and require the breaching Party to remedy the breach.
Within 30 Business Days, the breaching Party shall take all available and reasonable measures to remedy, mitigate, or eliminate the breach. After this period, if the breach by the breaching Party continues, without the need for further notice, the non-breaching Party shall be entitled to terminate this Agreement under Article 7 below and claim actual damages arising from the breach and fault of the breaching Party in accordance with Vietnamese law.
- Termination
7.1. Either Party or the Parties may terminate this Agreement, as applicable, upon the occurrence of any of the following events:
(a) By the Seller if the Buyer fails to transfer funds into the Escrow Account within the timeframes specified in Article 3.1; or
(b) By the Seller if the Buyer fails to comply with the general directives under Article 5.1; or
(c) By the Buyer if the Shareholder Agreement, Loan Agreement, and Amended Charter are not signed within 03 months after the date of signing this Agreement; or
(d) By either Party if there is non-compliance with Article 3.1(b)(i) or Article 3.1(b)(ii);
(e) Upon the expiration of the 30 Business Days period specified in Article 4.3 if the Parties cannot agree on a resolution to the issues arising from non-compliance; or
(f) By the Buyer due to any breach of commitments.
7.2. In the event this Agreement is terminated due to:
(a) Article 7.1(a) or Article 7.1(b), the Seller shall be entitled to receive 20% of the Transfer Price as a penalty for the Buyer’s breach; or
(b) Article 7.1(c) or Article 7.1(d), neither Party shall be subject to a penalty; or
(c) Article 7.1(e), the Seller shall return to the Buyer the amount equivalent to 20% of the Transfer Price received from the Buyer without any additional charges in any form; or
(d) Article 7.1(f), and such termination occurs:
(i) Before the amounts under Article 3.1(b) are transferred by the Buyer into the Escrow Account, neither Party shall be subject to a penalty; or
(ii) After the amounts under Article 3.1(b) are fully transferred by the Buyer into the Escrow Account, the Seller shall pay the Buyer an amount equivalent to 20% of the Transfer Price as a penalty for the Buyer’s breach;
All rights and obligations of the Parties shall immediately terminate, except that the termination of this Agreement shall not affect the accrued rights and obligations of the Parties (including but not limited to the right to indemnification for any breach, if any, causing the termination of the Agreement and any other breach by either Party prior to termination).
- Force Majeure Events
8.1. Neither Party shall be liable for any delay, damage, or loss due to the failure to perform any of its obligations under this Agreement, the Loan Agreement, the Shareholder Agreement, or the Escrow Agreement caused by a Force Majeure Event that directly or indirectly prevents or hinders the performance of such obligations, provided that:
(a) The affected Party shall take all reasonable measures to remedy or avoid the Force Majeure Event; and
(b) The affected Party notifies the other Party immediately after the occurrence of the Force Majeure Event, and within fifteen (15) Business Days from the date of sending such notice to the other Party, the affected Party obtains appropriate and valid confirmation from the relevant competent authorities where the Force Majeure Event occurred and the measures taken to remedy it.
8.2. The Parties agree that all Parties shall take appropriate measures to prevent or mitigate the consequences of a Force Majeure Event.
8.3. If the Force Majeure Event prevents and continues to prevent the performance of the share transfer transaction and the Project under this Agreement for more than one (1) year, the Parties shall jointly discuss and agree on whether to continue or terminate this Agreement.
- Cumulative Remedies
The rights of the Parties under this Agreement are cumulative and do not exclude or limit any other rights (unless otherwise stipulated in the Agreement).
- No Waiver
Failure by either Party to exercise any right under this Agreement or under any other provisions shall not be deemed a waiver by that Party of such rights or any other rights. A Party’s exercise of any right once or partially shall not prevent it from exercising that right multiple times or additionally, or from exercising any other rights.
- Severability
If any provision or agreement is not or is no longer valid, effective, binding, and enforceable under Vietnamese law, the validity, effectiveness, binding nature, or enforceability of the remaining provisions under Vietnamese law shall not be affected.
- Amendments
Any amendments to this Agreement shall only be effective if made in writing and signed by the Parties.
- Conflicts with Loan Agreement, Escrow Agreement, or Shareholder Agreement
13.1. This Agreement shall be the basis for resolving any conflicts between this Agreement and the Loan Agreement, the Escrow Agreement, the Shareholder Agreement, or any other agreements signed by the Parties.
13.2. If any conflicts arise between the terms and conditions of this Agreement and the Loan Agreement, the Escrow Agreement, or the Shareholder Agreement, this Agreement shall take precedence, and to the extent necessary, the terms and conditions of this Agreement shall prevail over any conflicting, contrary, or inconsistent terms and conditions. The Parties shall proceed to amend the Loan Agreement, the Escrow Agreement, or the Shareholder Agreement to eliminate such conflicts, differences, or inconsistencies.
- Successors
This Agreement shall be binding upon the successors of each Party.
- Assignment
No Party shall be permitted to assign any rights or obligations under this Agreement, except that the Buyer may assign all or part of its rights to its parent company or any subsidiary of the parent company.
- Confidentiality
16.1. Except as provided in Articles 16.2 and 16.3, without the prior written consent of the other Party, neither Party shall disclose the existence and content of this Agreement as well as any documents, materials, and other information, whether technical or commercial, in tangible or oral form, provided to it by or on behalf of the other Party (“Confidential Information”).
16.2. A Party may disclose Confidential Information:
(a) To its employees, officers, consultants, legal advisors, or attorneys, or financial advisors or bankers who, in its view, need to know such information to make this Agreement effective, but only on a strict need-to-know basis; and
(b) If required by law or any stock exchange/securities market, supervisory authority, regulatory authority, or government authority in accordance with applicable legal regulations.
16.3. A Party may only disclose or announce content related to the Company or this Agreement in a manner and on terms previously agreed upon by the Parties in writing, except when required by law or any stock exchange/securities market, supervisory authority, regulatory authority, or government authority in accordance with applicable laws or regulations governing the relevant Party.
- No Agreement and Negotiation with Any Third Party
During the term of this Agreement and until the Amended Business Registration Certificate is issued to the Company, the Seller undertakes and agrees that the Seller, without the prior written consent of the Buyer, shall not, directly or indirectly, enter into or pursue any agreement or provide any information related to the Transferred Shares, the Project, or related to the Land to any third party other than the Buyer or the Buyer’s advisors or the Seller’s advisors.
- Notices
18.1. Any notice, approval, or other communications between the Parties under this Agreement shall be in writing in English and shall be sent by fax and registered mail to the relevant Party at the address specified above. Notices shall be deemed received and effective upon receipt of an acknowledgment or successful fax transmission report. Each Party shall designate one or more contact persons to facilitate cooperation between the Parties. The primary contact persons of each Party shall be:
(a) For the Seller: Mr./Ms. [ ]; and
(b) For the Buyer: Mr./Ms. [ ].
18.2. In the event that a Party changes one or more primary contact persons, it shall promptly notify the other Party in writing of such change.
- Governing Law and Jurisdiction
19.1. This Agreement and the negotiations between the Parties related to the Transferred Shares shall be governed by and construed in accordance with the laws of Vietnam. The Parties undertake to strictly perform the terms of this Agreement. If any disputes arise, such disputes shall be resolved through negotiation by one Party sending written notice to the other Party to negotiate within 60 days.
If the Parties cannot reach an agreement within this 60-day period, either Party shall have the right to refer the unresolved dispute to arbitration at the Vietnam International Arbitration Centre (“VIAC”) by a tribunal comprising 3 arbitrators (each Party shall appoint 1 arbitrator; the 2 appointed arbitrators shall select the third arbitrator) in accordance with the procedural rules of VIAC in effect at the time the dispute arises. Vietnamese shall be used in the arbitration. The arbitrators’ decision shall be final and binding on the Parties.
19.2. This Agreement is made in three (3) original copies in Vietnamese and three (3) original copies in English, each Party and the Joint Stock Company (the target company) retaining one set in each language. In case of any differences between the English and Vietnamese versions, the Vietnamese version of this Agreement shall prevail as the reference basis for translation or interpretation.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
On behalf of and representing
[SELLER] CORPORATION
_____________________________________________________________
Name:
Title:
On behalf of and representing
[BUYER] COMPANY
_____________________________________________________________
Name:
Title:
Appendix 1
Location of the Land
Appendix 2
Warranties
- Shares
1.1. The Seller is the sole legal and beneficial owner of the Transferred Shares and has full authority to sell, transfer, and convey legal and full ownership of the Transferred Shares to the Buyer upon completion. The Transferred Shares are free from any Encumbrances and have all benefits, rights, and entitlements arising or attaching to them as of the Completion Date.
1.2. This Agreement has been duly authorized, signed, and validly executed by the Seller and constitutes binding obligations enforceable against the Seller in accordance with its terms.
1.3. The Company has authorized the issuance of the Transferred Shares to the Seller, and the Transferred Shares are not subject to any pre-emptive rights or similar rights and are not restricted from transfer.
1.4. The Company has not granted any options, pre-emptive rights, or pledges, liens, or otherwise encumbered any shares except as provided in this Agreement.
1.5. As of the date of signing this Agreement, the information contained in this Agreement and in Appendix 2 is true, complete, and accurate.
1.6. All issued shares in the capital of the Company have been fully paid up.
1.7. No person has any right (whether exercisable now or in the future) to require the conversion, issuance, sale, or transfer of the Transferred Shares or any other securities giving rise to rights over the Transferred Shares held by the Seller under any option or other agreement (including rights to convert and pre-emptive rights). There are no claims, encumbrances, pledges, liens, demands, or other security interests of any kind against the Transferred Shares held by the Seller.
1.8. Upon the sale of the Transferred Shares to the Buyer, the Transferred Shares will represent 60% of the total shares of the Company as of the Completion Date, and the shareholding ratio in the Company will be as specified in Appendix 3.
1.9. Since the date of signing this Agreement:
(a) The Company has not disposed of any assets or incurred any liabilities (including contingent liabilities) except in the ordinary course of business;
(b) The business of the Company has not been adversely affected by the loss of any important customer or supplier or by any unusual factor, and the Seller, after diligent and thorough investigation, is not aware of any such factor that could have such an effect;
(c) No dividends or other distributions have been declared, made, or paid to the Company’s shareholders;
(d) The Company has not borrowed any money other than as disclosed in writing to the Buyer; and
(e) The Seller, after diligent and thorough investigation, is not aware of any circumstances that would render any book debts of the Company bad or doubtful debts.
- Litigation
Neither the Seller nor the Company is involved, as a plaintiff or defendant or in any other capacity, in any claims, legal actions, proceedings, lawsuits, litigation, prosecutions, investigations, complaints, inquiries, arbitrations, or administrative or criminal proceedings, or any proceedings before any court, tribunal, or governmental authority, including any appeals or similar requests for review.
- Commercial Matters
3.1. The Company holds all necessary licenses to conduct its business activities; these licenses are valid and continue to have legal effect and are not at risk of being revoked, terminated, or amended.
3.2. At all times, the Company conducts its business, performs its operations, and owns, leases, or otherwise holds its real estate and assets (as applicable) in all material respects in accordance with its constitutive documents, business licenses, and/or any laws, regulations, statutes, decrees, or orders that are in effect and applicable to the Company, as well as any other instruments to which the Company is or has been a party.
3.3. No debts or guarantees of the Company exceeding USD 1,000,000 have been called for payment or become due for early repayment due to any default by the Company or any other person.
3.4. Except for the loans, debts, and securities detailed and disclosed in writing to the Buyer and to be fully repaid or released before the Completion Date:
(a) The Company has not granted any loans to the Seller and/or any shareholder or director of the Company;
(b) The Seller does not owe any debt to the Company and/or any shareholder or director of the Company;
(c) The Company does not have any outstanding debts other than those incurred in the ordinary course of business; and
(d) There are no securities over any of the aforesaid loans or debts.
3.5. Apart from the contracts and commitments detailed and disclosed in writing to the Buyer (unless otherwise agreed in writing by the Buyer) and to be terminated by mutual agreement before the Completion Date, the Company does not have any further indemnity liabilities, nor does it have any current contracts or commitments in which the Seller and/or any shareholder or director of the Company has an interest.
3.6. The Company:
(a) Has no capital commitments and shall not make any capital commitments before the Completion Date without the Buyer’s prior written approval;
(b) Is not a party to any contract outside the ordinary course of business or any complex or long-term contract other than those disclosed to the Buyer;
(c) Has not delegated any powers under a valid power of attorney;
(d) Is not liable to or likely to be required to repay any loans/borrowings early due to failure to fulfill its obligations;
(e) Is not a party to any agreements that may or are likely to be terminated as a result of the signing or completion of this Agreement; and
(f) Has not entered into or been bound by any guarantee or indemnity that would still be in effect or likely to arise.
- Taxes
4.1. The Company has paid all taxes, levies, and duties when due and payable, and none of these taxes are or could be the subject of a tax dispute.
4.2. The Company has no outstanding tax liabilities of any kind that have not been reasonably provided for in the Company’s books, and all taxes up to the Completion Date will be properly paid or reasonably provided for in the books.
- Book Debts
There are no book debts disclosed in writing to the Buyer or arising thereafter that remain unpaid for more than 3 months from the due date of payment, and all such debts have been or will be recovered in full in the ordinary course of debt collection as disclosed to the Buyer or recorded in the Company’s books after making provisions for bad and doubtful debts.
- Insurance
All insurable assets of the Company have been insured at all relevant times and as of the date of signing this Agreement with an amount deemed adequate to cover fire and other risks typically insured by companies with similar business operations or ownership of similar real estate. The Company has, at all relevant times and as of the date of signing this Agreement, also been fully insured against accidents, errors, and omissions to third parties and other usual risks typically insured by such companies. For all such insurances:
(a) All insurance premiums have been fully paid to date; and
(b) All insurance contracts are valid and not voided due to any act, omission, or non-disclosure by the insured party.
- Due Diligence Information
The Seller has provided, and ensures that the Buyer has also provided, all information that a prudent and reasonable purchaser would consider necessary or advisable, and none of that information is untrue, inaccurate, misleading, or deceitful (whether by omission or for any other reason).
Appendix 3
Company Shareholders
No. | Shareholder | Passport/ Business Registration Certificate | Address | Type of Share | Number of Shares | Value (VND) (millions) | Percentage of Capital Contribution (%) |
(1) | [SELLER] CORPORATION |
|
| Common |
|
| 39.5 |
(2) | XXX | XXX | XXX | Common |
|
| 0.5 |
(3) | [BUYER] COMPANY |
|
| Common |
|
| 60 |
| Total |
|
|
|
|
| 100% |
Appendix 4
Legal and Financial Capability Documents of the Buyer
- Legal Documentation
- Financial Capability Documentation
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