Drafting services of share sell and purchase agreement in Vietnamese enterprises

AGRREMENT OF PURCHASE AND SALE OF SHARE

This agreement is made on this…………….day of ………2013.
By and between:
Mr………………
M/s………………
(Hereafter separately and/or collectively referred to as the “Vendor”)
And 
Mr………………
(Hereafter referred to as the “Vendor”)
The Vendor and the Purchaser may be singularly referred to as “Party” and collectively as “Parties”.

Recitals:
Whereas the Vendor holds……..(…) shares of Class “…..” of  his shareholding in … Ltd, a company incorporated under the Law on Enterprise 2005, having its registered office at …., Vietnam, (Hereafter referred to as the “Company”).
Whereas the Vendor wishes to sell …..(…) shares of Class “…..” and that the Buyer wishes to buy  the said shares
NOW, THEREFORE, IT IS HEREBY AGREED as follows:

1. Definitions and Interpretations:
In this agreement, unless the context otherwise requires, the following words and expressions have the meaning shown against them:
1.1 “Completion” means completion of the sale and purchase of Sale Shares as contemplated herein;
1.2 “Complete date” means the date of actual completion of all matters contemplated under Clause 4;
1.3 “AB Shares” means shares owned by AB Corporation (“ABC”) in the Company, which ………..(vendor) is obliged to purchase under the collaboration agreement dated ……. Between…………..and ABC.
1.4.”Sale Shares” means …………(number in word) Shares owned by the Vendor of the outstanding capital of the Company and to be sold by him hereunder ranking pari-passu in all respects with the remaining issued and outstanding Shares as at the date hereof.
1.5 “Shares” means issued ordinary Shares of VND  10,000 each in the capital of the Company.
1.6 “Warranties” means the representations and warranties on the part of the Vendor as set out herein and “Warranty” shall mean any one of the Warranties.

2. Sale and Purchase
2.1 The Vendor shall sell the Sale Shares free from all claims, charges, lien, encumbrances, options, rights of pre-emption or equities and rights attached thereto as the at the Complete Date for the consideration detailed in Clause 3 and the Purchaser relying on the representations, warranties and undertakings herein contained shall buy subject to sub-clause 2.2 all of the Sale Shares.
2.2 The Purchaser shall be not obliged to complete the purchase of any of the Sale Shares unless the purchase of all the Sale Shares is completed simutalneously in accordance with this Agreement.

3. Consideration
The price for the Sale Shares shall be calculated at VND …per share which shall be paid by the Purchaser. The Purchaser shall pay not to the Vendor, but to the Company directly in discharge of the obligations of the Vendor towards the Company. Said payment to the Company will fully discharge the liability of the Purchaser towards the Vendor. The total consideration of VN…. (vnd…only) shall be paid as provided hereunder.

4. Completion
4.1 Completion of the sale and purchase of the Sale Shares shall take place within 14 (fourteen) working days following the date upon which the conditions specified in the Clause 7 shall have been fulfilled, unless waived by the Purchaser in writing.
4.2 At the completion, the Vendor shall deliver to the Purchaser:
4.2.1 Transfer deeds in respect of the Sale Shares dully executed by the Vendor (or any relevant third party) in favor of the Purchaser or, as it may direct in writing to any of its nominees.
4.2.2 Certificate for the Sale Shares and any other documents which may be required to give good title to the Sale Shares and to enable the Purchaser to procure registration of the same in its name or as it may direct in writing to any of its nominees.
4.3 The Purchaser shall at completion pay as consideration for the transfers of the Sale Shares an amount of VND…. (VND…only) to the Company; and
4.4 An irrevocable power of attorney by the Vendor authorizing the nominee of the Purchaser to sign all documents to complete the transfer contemplated herein shall be delivered to the Purchaser simultaneous to the signing of the agreement.
4.5 The capital gains tax, if any, shall be borne by the Vendor, and transfer duty incurred on the transfer of the Sale Shares in favor of the Purchaser shall be borne by the Purchaser for completing the transactions contemplated herein.

5. Conditions Precedent:
5.1 Notwithstanding anything contained herein, all obligations of the Purchaser is conditions upon and subject to:
5.1.1 The grant of all approvals from the Member Council (if multi member liability limited company).
5.1.2 The grant of all approvals from the regulatory authorities required in respect of the sale and purchase of the Sale Shares.
5.1.3. There not having occurred any material adverse change in the economic or political conditions in Vietnam which are or may be prejudicial to the fulfillment of the aims and the objectives of the transactions contemplated herein; and
5.1.4 The Warranties being repeated by the Vendor as at the Completion Date and fully valid.

6. Representations and Warranties
The Vendor represents and warrants that :
6.1 There is no encumbrsance or other form of agreement (including conversion rights and rights of pre-emption or any other rights arising under anh shareholders or other like agreement) on, over or effecting any of the Sale Shares.
6.2 The execution, delivery and performance of this agreement by the Vendor do not and will not violate:
6.2.1 any morgate, charge, deed, contract or other undertaking or instrument; or
6.2.2 any law or regulation or any order or decree of any authority, agency or court binding on the Vendor.
6.3 the Sale Shares have been validly issued in all respects, are free transferable in the hand of the Vendor and no third party has any rights or have assert any right, to chalenge the sale and purchase of the Sale Shares     
6.4 The Vendor has not done, or omitted to do, anything whereby the performance of this Agreement might be prejudiced.
6.5 The Vendor hereby represent to, warrants to and undertakes with the Purchaser that, save for and to the extent of disclosures fully, fairly and accurately made in writing, each of the  statements set out herein is true, accurate and correct and not lead misleading. The remedies of the Purchaser in respect of any breach of any Warranty shall continue to subsist notwithstanding completion of the sale and purchase of the Sale Shares hereunder.
6.6 The Vendor will indemnity and hold harmless the Purchaser in respect of any losses, costs, claims, damages or other expenses of whatever nature incurred or suffered by the Purchaser to the extent that any such losses, costs, claims, damages or other expenses shall arise as consequence of any of the Warranties providing to have been any respect incorrect, inaccurate or misleading when made.
6.7 The Vendor hereby irrevocably waives all or any rights to which it may be entitled in respect of any misrepresentation, inaccuracy, or omission in or from any information or advice supplied or given by the Company or its officer or employees in enabling or inducing the Vendor to given the Warranties.
6.8 The Vendor does not have more than ………shares of the Company.

7.  Further Assurance.
The Vender will, at its own expense, at the request of the Purchaser give to the Purchaser such further information and assistance as the Purchaser shall require in order to achieve and effect of the transfer of the Sale Shares or of any other documents referred to or contemplated in this Agreement so as to achieve an affected transfer of the Sales Shares as contemplated in This Agreement or to cure any breach of a Warranty.

8. Purchaser’s Obligations
The Purchaser undertakes to take over the vender responsibility to purchase ABC shares from ABC after a period of one year from ….., 2013. The conditions specified under Clause 4,5 and 6 of this Agreement shall apply mutatis mutandis to the transaction of purchase of ABC shares, unless otherwise agreed in writing between the Purchaser and or it nominee and the PSIDC. Vendor hereby relinquishes his rights of pre-emption to buy the PSIDC shares in favor of the Purchaser or its nominee.

9. Announcement.
No announcement will be issued concerning the subject matter of this Agreement unless in the form and at a time approved by the Purchaser.

10. Notices
Any notice or other communication required to be given hereunder shall be in writing or shall be effected by letter or telex or by delivery by hand or facsimile transmission (and in case of facsimile transmission confirmed by letter) to the address of the Party to be served therewith set out hereunder in this Agreement or, as a case may be, to such telex number(s) or facsimile number(s) as such person shall specify for the purpose (or to such other address or telex number or facsimile number as the person to be served shall have specified for such purpose by not less than fifteen days notice in writing to the person which is to serve such notice or other communication) and shall be deem to have been served, in the case of a telex or facsimile transmission, when dispatched subject to confirmation by letter and, in the case of sending by letter, five days after being deposited in the post first class (in the case of a Party in the same jurisdiction) or air mail (in the case of a Party in a oversea jurisdiction) postage prepaid in the envelope addressed to the addresses at its address aforesaid and, in the case of hand delivery, when left at the following address:                       

Vendor
Address 1
Fax
Purchaser:
Address 1
Fax

11. General
11.1 If at any time any provision hereof is, or becomes, illegal invalid or unenforceable in any respect under the law of any jurisdiction, then
11.1.1 Neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby; and
11.1.2  to the extent that such provision would be valid if some part  thereof were deleted or the period or the area of application thereof reduced or some other modification made thereto which would not be such as materially to impair the intentions of the Parties with respect thereto, such provision shall apply with such modification as may be necessary to make it valid and effective.
11.2 No variation or amendment to this Agreement shall be effective unless in writing signed by authorized representatives of each of the Parties hereto.
11.3 No delay or failure by any Party to exercise any of its powers, rights or remedies under this Agreement shall operate as a waiver of them, nor any single or partial exercise of any such powers, rights or remedies exclude any other or further exercise of them. The remedies provided in this Agreement is cumulative and not exclusive of any remedies provided by law.
11.4 No Party shall assign, encumber, dispose of its rights under this Agreement or purport to transfer any burden imposed on it under this Agreement without the prior written consent of the other Party which may be withheld by that Party in its absolute discretion.
11.5 This Agreement shall be binding on the respective successors in title, personal representatives and assigns of the Parties.
11.6 Each Party shall pay its own costs and expenses incurred in connection with the preparation and signature of this Agreement.
12 Governing Law and Dispute Resolution
This Agreement entered into hereunder shall be governed by and construed in accordance with the laws of the Socialist Republic of Vietnam.
All disputes or controversy between any of the parties arising out of or in relation to this Agreement shall be finally settled by the Vietnam International Arbitration Centre at the Vietnam Chamber of Commerce and Industry in accordance with its Rules of Arbitration.
This Agreement shall be executed in 2 original copies in Vietnamese and English. Each party shall keep one copy of each language. In case of inconsistence between the two language versions, the English version shall prevail. 

IN WITNESS WHEREOF, this Agreement has been duly executed by the authorized representatives of each party.

For and on behalf of VENDER

_____ _____ _____ _____ _____
(Authorised signature and seal)
Name:
Position:

For and on behalf of  Purchaser
[counterpart’s name]

_____ _____ _____ _____ _____
(Authorised signature and seal)
Name:
Position: