STOCK PURCHASE AGREEMENT
THIS
STOCK PURCHASE AGREEMENT (“Agreement”), dated December
11, 2009, is by and among Cavico Corp., a Delaware corporation (the “Parent”), Cavico Vietnam
Company Limited, a company duly organized and existing under the laws of
Socialist Republic of Vietnam (the “Purchaser”), and Cavico Mining
and Construction JSC, a joint stock company duly organized and existing under
the laws of Socialist Republic of Vietnam (the “Seller”) (collectively, the
“Parties”).
W
I T N E S S E T H
WHEREAS,
the Purchaser is a wholly-owned subsidiary of the Parent, a public company
listed on the Nasdaq Capital Market;
WHEREAS,
the Purchaser conducts its operations through a number of subsidiaries, some of
which are entities that are wholly owned while others are partially owned by the
Purchaser;
WHEREAS,
the Purchaser currently owns 25.5% of the Seller, a company publicly traded in
Vietnam on the Ho Chi Minh Exchange under the symbol MCV;
WHEREAS,
the Seller desires to sell to the Purchaser, and the Purchaser desires to
purchase from the Seller, ordinary shares upon the terms and conditions set
forth herein to bring Purchaser’s ownership interest in Seller to 50%;
and
WHEREAS,
the Boards of Directors of the Parent, Purchaser and Seller have approved the
transactions contemplated by this Agreement.
NOW
THEREFORE, in consideration of the promises and respective mutual agreements
herein contained, it is agreed by and between the Parties hereto as
follows:
ARTICLE
1
SALE
AND PURCHASE OF THE SHARES
1.1 Sale of the
Shares. Subject to the terms and conditions of this Agreement,
the Seller shall issue and sell to the Purchaser up to an aggregate of 4,000,000
ordinary shares (the “Shares”). The
Purchaser reserves the right to decrease the number of Shares it purchases from
the Seller.
1.2 Closing. The
completion of the purchase and sale of the Shares shall occur at the offices of
the Purchaser on the tenth business day following the satisfaction of the
conditions set forth in Section 2 or on such
later date or at such different location as the parties hereto shall agree in
writing (the “Closing”). At the
Closing, the Seller will issue and sell to the Purchaser, and the Purchaser will
buy from the Seller, upon the terms and conditions hereinafter set forth,
4,000,000 Shares at a purchase price of 80% of average daily closing price on
the HOSE Exchange for ten days before the date which the Seller makes this
information public in; provided that the purchase
price shall not be lower than book value per share of 16,894 VND/share and shall
not exceed 21,000VND/share) per share (the “Purchase Price”). At the
Closing, the Seller shall deliver to the Purchaser one or more stock
certificates registered in the name of the Purchaser, in such nominee name(s) as
designated by the Purchaser.
1.3 Consideration for the
Shares. The Seller is transferring the Shares to the Purchaser in
consideration of the conversion of intercompany debt owed to the Purchaser by
the Seller or cash, at the Parent’s discretion.
ARTICLE
2
CONDITIONS
PRECEDENT
2.1 The
obligations of Parties under this Agreement are subject to the satisfaction of
the following conditions on or before Closing:
(a) each
of the representations and warranties of the Seller and Purchaser made herein
shall be accurate in all respects as of the date of this Agreement and as of the
Closing;
(b) the
Seller shall obtain the stockholder approval; and
(c) the
Purchaser shall provide an opinion from Vietnamese counsel to the Seller that
the sale of Shares shall not be prohibited by any applicable Vietnamese law or
governmental order or regulation.
ARTICLE
3
REPRESENTATIONS
AND COVENANTS OF SELLER AND PURCHASER
3.1 The
Seller hereby represents and warrants that:
(a) Issuance, Sale and Delivery
of the Shares. The Shares, when issued, delivered and paid for in the
manner set forth in this Agreement, will be duly authorized, validly issued,
fully paid and nonassessable. Any preemptive rights or other rights
to purchase with respect to the issuance and sale of the Shares by the Seller
have been waived by such holders. Except for the stockholder approval, no
further approval or authority of the stockholders of the Seller or the Board of
Directors of the Seller will be required for the issuance and sale of the Shares
to be sold by the Seller as contemplated herein.
(b) Due Execution, Delivery and
Performance of this Agreement. The Seller has full corporate power and
authority to execute and deliver this Agreement, and to consummate the
transactions contemplated hereby.The execution, delivery and performance by the
Seller of this Agreement have been duly authorized by all necessary corporate
action on behalf of the Seller. This Agreement has been duly executed
and delivered by the Seller and (assuming the due authorization, execution and
delivery by the other parties hereto and thereto) this Agreement constitutes
legal, valid and binding obligations of the Seller, enforceable against the
Seller in accordance with the terms hereby, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) No
Conflicts. Neither of the execution and delivery by the Seller
nor the compliance by the Seller with any of the provisions hereof or thereof
will (i) conflict with, or result in the breach of, any provision of the
certificate of incorporation or by-laws of the Seller, (ii) conflict with,
violate, result in the breach of, or constitute a default under any note, bond,
mortgage, indenture, license, agreement or other obligation to which the Seller
is a party or by which the Seller or its properties or assets are bound or (iii)
violate any statute, rule, regulation, order or decree of any governmental body
or authority by which the Seller is bound, except, in the case of clauses (ii)
and (iii), for such violations, breaches or defaults as would not, individually
or in the aggregate, have a material adverse effect on the business, properties,
results of operations, prospects, conditions (financial or otherwise) of the
Seller and its subsidiaries, taken as a whole.
(d) No Further
Consent. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person
or governmental body is required on the part of the Seller in connection with
the execution and delivery of this Agreement or the compliance by the Seller
with any of the provisions hereof.
3.2 The
Purchaser represents and warrants to the Seller as follows:
(a) Due Execution, Delivery and
Performance of this Agreement. The Purchaser has full
corporate power and authority to execute and deliver this Agreement, and to
consummate the transactions contemplated hereby. The execution,
delivery and performance by the Purchaser of this Agreement have been duly
authorized by all necessary corporate action on behalf of the
Purchaser. This Agreement has been duly executed and delivered by the
Purchaser and (assuming the due authorization, execution and delivery by the
other parties hereto and thereto) this Agreement constitutes legal, valid and
binding obligations of the Purchaser, enforceable against the Purchaser in
accordance with the terms hereby, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors’ rights and
remedies generally, and subject, as to enforceability, to general principles of
equity, including principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a proceeding at law or
in equity).
(b) No
Conflicts. Neither of the execution and delivery by the
Purchaser nor the compliance by the Purchaser with any of the provisions hereof
or thereof will (i) conflict with, or result in the breach of, any provision of
the certificate of incorporation or by-laws of the Purchaser, (ii) conflict
with, violate, result in the breach of, or constitute a default under any note,
bond, mortgage, indenture, license, agreement or other obligation to which the
Purchaser is a party or by which the Purchaser or its properties or assets are
bound or (iii) violate any statute, rule, regulation, order or decree of any
governmental body or authority by which the Purchaser is bound, except, in the
case of clauses (ii) and (iii), for such violations, breaches or defaults as
would not, individually or in the aggregate, have a material adverse effect on
the business, properties, results of operations, prospects, conditions
(financial or otherwise) of the Purchaser and its subsidiaries, taken as a
whole.
(c) No Further
Consent. No consent, waiver, approval, order, permit or
authorization of, or declaration or filing with, or notification to, any person
or governmental body is required on the part of the Purchaser in connection with
the execution and delivery of this Agreement or the compliance by the Purchaser
with any of the provisions hereof.
(d) Lockup
Agreement. The
Purchaser hereby agrees that for a period of five years after the purchase of
the Shares, the Purchaser will not offer, sell, contract to sell, grant any
option for the sale of, or otherwise dispose of, directly or indirectly, the
Shares purchased pursuant to this Agreement. The Purchaser shall
obtain a similar representation and covenant from any assignee permitted
pursuant to Article 4 before any assignment is valid.
ARTICLE
4
ASSIGNMENT
This
Agreement and the rights of the Purchaser hereunder may not be assigned by the
Purchaser without the prior written consent of the Seller, except such consent
shall not be required in cases of assignments to subsidiaries, affiliates and
related parties of the Purchaser, provided that such assignee agrees to be bound
by the terms of this Agreement by executing and delivering to the Seller an
assignment and assumption agreement in the form prescribed by the
Seller.
ARTICLE
5
MISCELLANEOUS
5.1 Entire
Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersedes all prior agreements, arrangements and
understandings related to the subject matter hereof. No
understanding, promise, inducement, statement of intention, representation,
warranty, covenant or condition, written or oral, express or implied, whether by
statute or otherwise, has been made by any party hereto which is not embodied in
this Agreement or the written statements, certificates, or other documents
delivered pursuant hereto or in connection with the transactions contemplated
hereby, and no party hereto shall be bound by or liable for any alleged
understanding, promise, inducement, statement, representation, warranty,
covenant or condition not so set forth.
5.2 Notices. Any
notice, request, instruction, or other document required by the terms of this
Agreement, or deemed by any of the parties hereto to be desirable, to be given
to any other party hereto shall be in writing and shall be given by facsimile,
personal delivery, overnight delivery, or mailed by registered or certified
mail, postage prepaid, with return receipt requested.
5.3 Waiver and
Amendment. Any term, provision, covenant, representation,
warranty or condition of this Agreement may be waived, but only by a written
instrument signed by the party entitled to the benefits thereof. The
failure or delay of any party at any time or times to require performance of any
provision hereof or to exercise its rights with respect to any provision hereof
shall in no manner operate as a waiver of or affect such party’s right at a
later time to enforce the same. No waiver by any party of any
condition, or of the breach of any term, provision, covenant, representation or
warranty contained in this Agreement, in any one or more instances, shall be
deemed to be or construed as a further or continuing waiver of any such
condition or breach or waiver of any other condition or of the breach of any
other term, provision, covenant, representation or warranty. No
modification or amendment of this Agreement shall be valid and binding unless it
be in writing and signed by all parties hereto.
5.4 Severability. In
case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
5.5 Choice of
Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the Socialist
Republic of Vietnam including all matters of construction, validity,
performance, and enforcement and without giving effect to the principles of
conflict of laws.
5.6 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which shall together constitute one and the same
instrument.
5.7 Further
Assurances. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurance as may be reasonably requested by any
other party to evidence and reflect the transactions described herein and
contemplated hereby and to carry into effect the intents and purposes of this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the date
first written hereinabove.
| CAVICO CORP. | CAVICO MINING AND CONSTRUCTION JSC | ||||
| /s/ Ha Xxxxx Xxx | /s/ Son Xxxx Xxxx | ||||
| By: |
Ha Xxxxx Xxx
|
By: |
Son Xxxx Xxxx
|
||
| Title: |
Chief Executive
Officer
|
Title: |
President
|
||
| CAVICO VIETNAM COMPANY LIMITED | |||||
| /s/ Xxxxx Xx Xxxx | |||||
| By: |
Xxxxx Xx Xxxx
|
||||
| Title: |
President
|
||||
