Ho Chi Minh City, January 23, 2008 DOT VN LIMITED LIABILITY COMPANY AND QUANG TRUNG SOFTWARE CITY DEVELOPMENT COMPANY
EXHIBIT
10.16
Ho
Chi Minh City, January 23, 2008
DOT
VN LIMITED LIABILITY COMPANY
AND
XXXXX
XXXXX SOFTWARE CITY DEVELOPMENT COMPANY
BUSINESS
CO-OPERATION AGREEMENT
CONTENTS
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Page
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| PART I |
1
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| LEGAL BASIS AND PARTIES |
1
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| PART II |
2
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| PRINCIPAL CONTENTS |
2
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Article
1:
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Definitions
and Interpretation
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2
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Article
2:
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Purposes
and Scope of Cooperation
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4
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Article
3:
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Details
of the Project
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5
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Article
4:
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Contribution
of the Parties
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5
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Article
5:
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Rights
and Obligations of the Parties
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7
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Article
6:
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Conditions
Precedent
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8
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Article
7:
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Converting
Project from Business Cooperation Agreement into Joint Stock
Company
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9
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PART
III
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9
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OPERATIONAL
MATTERS
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9
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Article
8:
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Structure
of Management
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9
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Article
9:
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Accounting
System
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11
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Article
10:
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Bank
Accounts
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11
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Article
11:
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Fiscal
Year
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11
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Article
12:
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Revenues
and Joint Expenditures
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11
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Article
13:
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Profits,
Distribution of Profits and Settlement of
Loss
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12
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Article
14:
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Financial
Statements and Audited Accounts
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12
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Article
15:
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Taxes
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13
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Article
16:
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Labour
Policies
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13
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Article
17:
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Force
Majeure
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13
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Article
18:
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Dispute
resolution
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13
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Article
19:
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Duration
- Effect
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14
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Article
20:
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Termination
resulting from a Default by a Party
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14
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Article
21:
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Termination
not arising from a Default by a Party
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14
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Article
22:
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Termination
Procedure
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15
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Article
23:
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Confidentiality
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16
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Article
24:
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Governing
Laws
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16
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Article
25:
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Insurance
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17
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Article
26:
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Liquidation
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17
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Article
27:
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Representations
and Covenants
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17
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Article
28:
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Notices
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18
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Languages
and Copies
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18
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Article
30:
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General
Matters
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18
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2
PART
I
LEGAL
BASIS AND PARTIES
BASED
ON:
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(i)
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The
Law on Investment No.59/2005/QH11 approved by The National Assembly
of
Socialist Republic of Vietnam on 29 November
2005;
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(ii)
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The
Law on Information and Technology No.67/2006/QH11 approved by The
National
Assembly of Socialist Republic of Vietnam on 29 June
2006;
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(iii)
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Decree
No.108/2006/ND-CP of the Government dated 22 October 2006 on providing
guidelines for implementation of a number of article of Law on
Investment;
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(iv)
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Law
on Enterprise No.60/2005/QH11 approved by The National Assembly of
Socialist Republic of Vietnam on 29 November
2005;
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(v)
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The
result of the negotiation between Parties on cooperating to execute
IDC
project.
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(vi)
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In-Principle
Agreement on building and operating an Internet Database Center between
Dot VN, Inc. and Xxxxx Xxxxx Software City on 26th
July, 2007;
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The
Parties to this Business Cooperation Agreement shall comprise:
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(A)
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Party
A:
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1.
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Name:
DOT VN LIMITED LIABILITY COMPANY, a
100% foreign-owned enterprise, duly established under Investment
Certificate No. 411043000394 dated 29 November 2007 issued by Ho
Chi Minh
City People’s Committee and validly existing under the laws of
Vietnam.
|
Transaction
name: DOT VN, Ltd.
Abbreviated
name: DOT VN
| 2. |
Registered
address: Telecommunications
Station Building - Xxxxx Xxxxx Software City, Tan Xxxxx Xxxx Xxxxxxxx,
Xxxxxxxx Xx.00, Xx Xxx Xxxx Xxxx
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Telephone: Fax:
Account
No.:
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3.
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Business
Registration Certificate No.:
411043000394
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Date:
29
November 2007
Issued
by: Ho Chi Minh City People’s Committee
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4.
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Authorized
Representative: Xx.
XXXXX XXX XXXXXXX
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Position: General
Director
Nationality: American
Permanent
Address: 0000
Xxxxxx Xxx, Xxxxx 000, Xxx Xxxxx, XX 00000, the United States of
America
And
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(B)
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Party
B:
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1.
|
Name:
XXXXX XXXXX SOFTWARE CITY DEVELOPMENT COMPANY, a
100% State-owned enterprise duly established under Establishment
Decision
No. 6756 dated 03 October 2000 issued by the Chairman of the Peoples’
Committee of Ho Chi Minh City and validly existing under the laws
of
Vietnam.
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Transaction
name:
Xxxxx Xxxxx Software City
3
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2.
|
Register
address: No.97 Xxxxxx Xxxx Tru, Xxxxxx Thai Xxxx Precinct, Xxxxxxxx
Xx.0,
Xx Xxx Xxxx Xxxx, Xxxxxxx.
|
Telephone: Fax:
Account
No.: at AGRIBANK Vietnam, Hoc Mon Branch - Trans Asia Branch.
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3.
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Business
Registration Certificate No.:
102355
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Dated:
06
February 1993
Issued
by: Ho Chi Minh City Department of Planning and Investment.
| 4. |
Authorized
Representative: Xx.
Xxxxxx Xxx Xxxx (under
the Power of Attorney dated 21 January
2008)
|
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Position:
Nationality:
Permanent Address:
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Deputy
Director
Vietnamese
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WHEREAS:
| (A) |
Party
A and Party B wish to own, develop, construct and operate IDC in
the
Location;
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| (B) |
Party
A and Party B wish to enter into this Agreement for the purpose of
recording and regulating their relationship and collaboration on
the
Project.
|
IT
IS AGREED
as
follows:
PART
II
PRINCIPAL
CONTENTS
Article
1:
Definitions
and Interpretation
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1.1
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Definitions
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Unless
the context of this Business Cooperation Agreement requires otherwise, the
following terms and expressions shall have the following meanings:
“Adopted
Accounting System” means
the
accounting and reporting systems described in Article 9.2 and adopted for the
purpose of the Business;
“Agreement”
means
this business cooperation agreement between Party A and Party B including its
amendments as from time to time (if any) which form an integral part(s) of
this
Agreement;
“Business”
means
the business of managing and operating the IDC as mutually agreed by both
Parties;
“Business
Cooperation Agreement”
means
the agreement by and between the Parties which governs the business cooperation,
construction, development and operation of the IDC;
“Business
Plan”
means
the business projections and plans mutually agreed and approved by the
Management Committee as may be amended in accordance with situation of the
Party(s) and Vietnamese market conditions from time to time;
4
“Chief
Accountant” means
the
chief accountant of the Business appointed by Party A with the powers and duties
as specified in Article 9.1 of this Agreement and as may be specified under
the
relevant regulations;
“Dispute”
means
any question, dispute, controversy, difference or claim arising out of or
relating to this Agreement or the breach, termination or validity
thereof;
“Default”
means
the occurrence of an event mentioned under Article 20 entitling a Party to
terminate this Agreement;
“Financial
Projection”
means
the financial projections in the Business Plan as may be amended from time
to
time as approved by the Management Committee;
“Fiscal
Year”
means
the financial year of the Business as described in Article 11;
“Force
Majeure Event”
means
any event or cause beyond the control of a Party which renders performance
of
that Party's obligations under the Agreement impossible temporarily or
permanently including, as may be applicable to a Party's performance under
this
Agreement, national emergency, war, hostilities, riot, civil commotion, monetary
crisis in any financial market or banking system, malicious damage, earthquake,
flood, fire, plague, epidemic, material industrial disputes and restrictions
on
investment or the transfer of funds; provided that, in the case of the
Vietnamese Party, no act or omission of any State Agency shall operate as a
Force Majeure Event in respect of the obligations of the Vietnamese
Party;
“IDC”
means
the Internet Data Center to be developed on the Location as more particularly
described in Article 3 (Details
of the Project)
“Investment
Certificate”
means
the investment certificate and/or its amendment (s) as issued by competent
authorities to the Parties with respect of the Business;
“Investment
Account”
means
any bank account of the Business opened and operated in accordance with Article
10 of this Agreement in order to hold the Investment Capital;
“Joint
Expenditure”
means
a
joint expenditure listed in Article 12.3 to be deducted from the Revenue of
the
Business prior to the allocation of Revenue between the Parties;
“Location”
means
total area of [Ÿ]
square
meters including (i) area of [Ÿ]
square
meters of two rooms in the first floor; (ii) area of [Ÿ]
square
meters of a half of second floor; and (iii) area of whole of the third floor
of
the Telecommunications Station Building located in the QTSC, as more
particularly described in Article 3 (Details
of the Project);
“Laws
of Vietnam”
means
the Law, decrees, decisions, circulars and other relevant regulations (including
all its amendments from time to time) applicable to, inter
alia
business
co-operations with foreign organizations in Vietnam;
“Management
Committee”
means
the body who is responsible to manage the day-to-day operation of the Business
Cooperation Agreement as described in Article 8.
“MPI”
means
the
Ministry of Planning and Investment of the Socialist Republic of
Vietnam.
“Net
Revenue”
means
Revenue less Joint Expenditure and payable taxes;
“Operating
Account”
means
any bank account of the Business opened and operated in accordance with Article
10 of this Agreement which will receive and disburse the revenue generated
by
the operation of the Business as well as pay expenses incurred in connection
with the operation of the Business;
“Party”
means
Party A or Party B individually and "Parties"
means
Party A and Party B collectively;
“Project”
means
the construction and development of the IDC on the Location and the execution
of
the Business by the Agreement, as more particularly described in Article 3
(Details of the Project);
5
“Revenues”
means
the revenues as described in Article 12;
“State
Agency”
and
“State
Agencies”
means
any Government Office, People's Committee, Ministry, utility authority or body,
and any other committee, council, agency, or body of the Government whose
consent, approval, commitment, involvement or consultation is required for
anything or matter referred to in or contemplated by the Business of this
Agreement;
“Term”
means
the term of this Agreement as described in Article 19;
“Termination
Event”
means
the occurrence of an event as described in Articles 20, 21 of this Agreement
which entitles or results in a Party becoming entitled to terminate this
Agreement or which leads to automatic termination;
“USD”
or “US$”
or
“Dollar”
means
the lawful currency of the United States of America;
“Vietnam”
means
the Socialist Republic of Vietnam;
“Vietnamese
Dong”
or
“Dong”
or
“VND”
means
the lawful currency of Vietnam;
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1.2
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Interpretation:
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(a)
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Any
expression which is not specifically defined in this Agreement but
is
defined by reference to the Articles shall be construed
accordingly;
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(b)
|
Any
reference to a statutory provision shall include such provision as
from
time to time modified or re-enacted in so far as such modification
or
re-enactment applies or is capable of applying to any transaction
entered
into hereunder;
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(c)
|
Any
reference to any document including this Agreement shall include
such
document (or this Agreement as the case may be) as from time to time
modified, supplemented or amended;
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(d)
|
Unless
otherwise specified or if the context does not permit, references
to
clauses and schedules, are to the clauses of and schedules to, this
Agreement; and paragraphs are to the paragraphs of the Schedules
of this
Agreement;
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(e)
|
The
headings are for convenience only and shall not affect the interpretation
hereof.
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(f)
|
Unless
the context otherwise requires, references to the singular number
shall
include references to the plural number and vice versa and references
to
natural persons shall include bodies
corporate;
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(g)
|
Every
defined term shall whenever used in any of its other grammatical
versions,
be construed accordingly; and
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(f)
|
References
to party and parties shall be construed as references to a party
or the
parties to this Agreement.
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Article
2: Purposes
and Scope of Cooperation
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2.1
|
The
two Parties agree to co-operate in establishing and operating the
IDC with
TIER 3 standard except for limitations that can not be executed on
the
Location as regulated in Article 3 of this
Agreement.
|
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2.2
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Form
of co-operation: The
parties agree to implement the Project in the form of a Business
Cooperation Agreement between them on the terms and subject to the
conditions set out in this Agreement. The overall management of business
activities shall be executed by Party A. In the future, at the reasonable
time, both parties shall carry out necessary procedures as required
by
laws of Vietnam in order to convert the Agreement into a joint stock
company. The details of conversion of the Agreement into a joint
stock
company shall be discussed between parties.
|
6
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2.3
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The
Business shall be conducted so as to achieve positive economic results
for
the benefit of the Business and enable each Party to obtained satisfactory
financial return there from.
|
Article
3: Details
of the Project
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Name
of the Project
|
:
|
Establishment
of Internet Data Center (IDC)
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|
Location
|
:
|
1st,
2nd
and 3rd
floor of Telecommunications Station Building, Xxxxx Xxxxx Software
City.
|
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Initial
Investment Capital of the Project
|
:
|
(CONFIDENTIAL
TREATMENT REQUESTED)
|
|
Operation
term of the Project
|
:
|
(CONFIDENTIAL
TREATMENT REQUESTED)
years from the date possession of the Location is delivered to
Party
A..
|
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Total
Using Space
|
:
|
-
Total area: Approximately, 1,000m2
(one thousand square meters).
|
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Progress
of the Project
|
:
|
-
Expected time for completion of procedures for setting up the Business
Cooperation Agreement: 01 February 2008
-
Expected time for the IDC establishment and equipment installation:
from 7
to 9 months
-
Expected time for officially operating: October 2008
|
|
Main
services of the Project
|
:
|
- Web-hosting
services, including cabinet, racks and private room hosting;
- Application
server hosting services;
- Providing
hardware and equipment;
|
|
Key
Personnel of the Project
|
:
|
PARTY
A
|
Article
4: Contribution
of the Parties
The
Parties agree (without prejudice to their other obligations under this
Agreement) that their contribution to the Business
Cooperation Agreement
shall be
as followings:
|
4.1
|
Ratio
of Contribution:
|
Party
A
shall contribute an amount of (CONFIDENTIAL
TREATMENT REQUESTED) by
equipment, machines; facility construction expenses; means of operating the
IDC,
expertise and working capital to the Business
Cooperation Agreement
equivalent to (CONFIDENTIAL
TREATMENT REQUESTED) of
total
Investment Capital.
7
Party
B
shall contribute the equivalent of (CONFIDENTIAL
TREATMENT REQUESTED) by
providing the exclusive use of the Location for the period of (CONFIDENTIAL
TREATMENT REQUESTED)
from the
date possession of the Location is delivered to Party A,
equivalent to (CONFIDENTIAL
TREATMENT REQUESTED)
of total
Investment Capital.
However,
both Parties agree that Party A’s contribution equivalent to (CONFIDENTIAL
TREATMENT REQUESTED) as
mentioned in the first paragraph of this Article 4.1 is only a temporary
estimation and after completing the investment for construction of IDC, the
Parties shall carry out the process of evaluating and determining value of
equipment and machinery; expenditures for facility design and construction;
means of operating the IDC, expertise contributed by Party A in order to
determine actual contribution of Party A into Business Co-operation Agreement
based on principles as regulated in the Article 4.4 herein below. Total actual
contribution of Party A into Business Co-operation Agreement shall be adjusted
in accordance with result from the evaluation of equipment and machinery;
expenditures for facility design and construction; means of operating the IDC,
expertise agreed by the Party or decided by valuer organization.
If
according to result of evaluation, total value of equipment and machinery;
expenditures for facility design and construction; means of operating the IDC,
expertise and working capital contributed by Party A is under (CONFIDENTIAL
TREATMENT REQUESTED) ,
Party A
shall have to contribute additionally in cash in order to ensure contribution
ratio of each party as agreed above (Party A holds (CONFIDENTIAL
TREATMENT REQUESTED)
of total
Investment capital, Party B holds (CONFIDENTIAL
TREATMENT REQUESTED)
of total
Investment capital) or the Parties shall adjust capital contribution ratio
of
each Parties in accordance with actual contributed value.
If
according to result of evaluation, total value of equipment and machinery;
expenditures for facility design and construction; means of operating the IDC,
expertise and working capital contributed by Party A is more than (CONFIDENTIAL
TREATMENT REQUESTED) ,
Party B
shall have to contribute additionally in cash in order to ensure contribution
ratio of each party as agreed above (Party A holds (CONFIDENTIAL
TREATMENT REQUESTED) of
total
Investment capital, Party B holds (CONFIDENTIAL
TREATMENT REQUESTED)
of total
Investment capital) or the Parties shall adjust capital contribution ratio
of
each Parties in accordance with actual contributed value.
To
the
extent that additional contribution is required to complete the IDC (the
“Additional Contribution”), both Parties shall contribute to such Additional
Contribution in proportion to the ratio of their respective capital contribution
to the initial Investment Capital as stipulated above ((CONFIDENTIAL
TREATMENT REQUESTED) ).
The
Parties may contribute their respective contribution to the initial Investment
Capital by cash, and/or equipment, and/or extension of the term of use of the
Location, and/or the other assets following consideration and agreement of
the
Parties on such Additional Contribution.
In
case,
a Party does not contribute or not contribute fully to its respective additional
contribution to the initial Investment Capital, other Party shall contribute
such additional contribution to the initial Investment Capital. In such a case,
the ratio of contribution of each party as regulated above must be adjusted
in
compliance with the actual contribution of each Party to the total Investment
Capital (consist of the Investment Capital of (CONFIDENTIAL
TREATMENT REQUESTED)
, and
the Additional Contribution.
4.2 Schedule
of Contribution:
4.2.1 Party
A:
-
In the
year 2008, after obtaining Investment Certificate, Party A shall be accountable
to finance for the procurement of the following items which shall be included
in
(CONFIDENTIAL
TREATMENT REQUESTED) of
total
Investment Capital:
|
(i)
|
IDC
Infrastructure Design and Consultancy Expenses (Fees for survey expert,
travel fees of expert, consultancy fees, design fees, drawing in
detail of
IDC...);
|
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(ii)
|
Fees
for construction of IDC infrastructure includes: completing of building
infrastructure according to the design (raised floor, server room,
function room...);
|
8
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(iii)
|
Equipments
for IDC as mentioned in the Business Plan, for example, electric
generator, networks components, cooling system, security equipments,
firefighting equipments, electric system, UPS system, Dmarc
room;
|
|
(iv)
|
Equipments,
software, hardware and other facilities as set out in Business Plan;
|
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(v)
|
Expenses
of operating the IDC (management expenses, salary, employment
expenses…);
|
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(vi)
|
All
fees and expenses relating to training and transfer technology [if
any];
|
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(vii)
|
Vehicles
used for network operation and management [if
any];
|
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(viii)
|
Working
capital;
|
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(ix)
|
Other
equipments, etc.
|
| 4.2.2 |
Party
B
|
-
In the
year 2008, after obtaining Investment Certificate, Party B shall contribute
its
contribution to the Business
Cooperation Agreement equivalent
to (CONFIDENTIAL
TREATMENT REQUESTED)
of total
Investment Capital by the value of exclusive using right in respect of the
Location during period of (CONFIDENTIAL
TREATMENT REQUESTED)
from the
date possession of the Location is delivered to Party A.
| 4.3 |
Any
cash contributed by the Parties shall be deposited in a Investment
Account
in Vietnam;
|
| 4.4 |
Any
contribution of each Party which not is in form of cash shall
be checked
and evaluated based on mutual agreement between parties. In case,
parties
do not reach an agreement on valuation of contribution then the
parties
shall appoint a company or a professional
valuer organization duly registered
and operating in Vietnam to check and evaluate such
contribution.
|
|
4.5
|
Ownership
of Contributions:
|
| 4.5.1 |
The
Parties agree that all assets described as parts of the party’s
contribution to the Project and the assets to be purchased by
the
Investment Account of the Project (if required only) shall be
jointly
owned by the two Parties as Joint Assets in compliance with Vietnamese
laws. The Joint Assets shall be used solely for this
Project;
|
| 4.5.2 |
The
parties agree that upon termination of the Business
Cooperation Agreement,
remainder value of all joint assets of the Project shall be return
to such
party in accordance with proportion of contribution of each party
to the
total Investment
Capital.
|
Article
5: Rights
and Obligations of the Parties
| 5.1 |
The
Party A shall have the following rights and
obligations:
|
|
5.1.1
|
To
be responsible to design the IDC;
|
|
5.1.2
|
To
be accountable to finance for the procurement of the equipments/facilities
in order to set up and complete the IDC in accordance with the approved
design and TIER 3 redundant standard in the Location pursuant to
the
requirements of Article 4.1.
|
|
5.1.3
|
To
be responsible for managing and running process of setting up, building
and completing the IDC and promptly report the progress to Party
B.
|
|
5.1.4
|
To
be responsible for preparing a Business Plan approved by the
Parties;
|
9
|
5.1.5
|
To
manage, run and operate IDC in accordance with Business Plan approved
by
the Management Committee;
|
|
5.1.6
|
To
co-operate with Party B in order to carry out and obtain all necessary
procedure/approval required for purpose of setting up and operating
the
IDC.
|
|
5.1.7
|
To
be responsible for procedure of importing equipments to Custom offices
and
other procedures related to the establishment, management and operation
of
the IDC and contemplated services.
|
|
5.1.8
|
To
provide Party B with list of equipment and machinery shall be purchased
to
IDC.
|
|
5.2
|
The
Party B shall have the following rights and
obligations:
|
|
5.2.1
|
Party
B shall be responsible for completion of the project profile and
other
procedures in order to apply for Investment Certificate of the Project
(costs for this application procedure shall be calculated as Joint
Expenditure);
|
|
5.2.2
|
To
carry out and obtain, with assistance of Party A, all necessary
procedure/approval required for purpose of setting up and operating
the
IDC;
|
|
5.2.3
|
To
participate in making strategy and plan for development of the
IDC;
|
|
5.2.4
|
To
appoint personnel to participate in management of the
IDC;
|
|
5.2.5
|
To
support the execution of Business Plan including but not limited
to
advertising, promoting for the IDC;
|
|
5.2.6
|
To
ensure that Party A and IDC employees have access to the Location
24
(twenty four) hours per day, 365 (three hundreds and sixty five)
days per
year during the Term, except for force majeure
factors;
|
|
5.2.7
|
To
ensure the availability and sufficiency of infrastructure services
including but not limited to electricity source, water source and
network
infrastructure for connection of information and data in order to
supply
to the IDC.
|
|
5.2.8
|
To
ensure that all utilities provided to the IDC including but not limited
to
electricity source, water source and network infrastructure shall
be at a
preferential price for such
utilities;
|
|
5.2.9
|
To
give the best conditions for setting up and operating the
IDC;
|
|
5.2.10
|
To
co-ordinate with Party A in setting up and operating the
IDC;
|
|
5.2.11
|
To
assist Party A in procedure of importing equipments to Custom offices
and
other procedures related to the establishment, management and operation
of
the IDC and contemplated services.
|
Article
6: Conditions
Precedent
Notwithstanding
any other provisions of this Agreement, the performance of each Party’s
respective obligations under Article 3, 4 and 5 are conditional upon the
fulfillment of the following pre-conditions to the satisfaction of both Parties.
|
6.1
|
Party
B shall have to provide Party A with a copy of document certifying
that
Party B is the legal owner of the Telecommunications Station Building
at
Land Lot No. 36 in Xxxxx Xxxxx Software City, Tan Xxxxx Xxxx Precinct,
District No.12, Ho Chi Minh City in order to prove legal ownership
status
of Party B and Party B is entitled to contribute by use right of
the
Location within the duration of the Business Cooperation
Agreement;
|
10
|
6.2
|
The
registration of the Business Cooperation Agreement constituted by
this
Agreement, and issuance of the Investment Certificate for the execution
of
the Project as a Business Cooperation Agreement;
|
|
6.3
|
The
parties have performed all of the covenants and obligations required
to be
performed or caused to be performed by it under this Agreement;
and
|
|
6.4
|
Party
B commits that during the Term of this Agreement, except for existing
IDC,
Party B shall not co-operate with any other partner rather than Party
A to
construct, develop, upgrade or manage any other IDC within the boundaries
of Xxxxx Xxxxx Software City, Tan Xxxxx Xxxx Precinct, Xxxxxxxx Xx.00,
Xx
Xxx Xxxx Xxxx or co-operate to construct, develop IDC project with
any
other partner which shall directly affect the contemplated profit
or
exploitability of the IDC
whatsoever.
|
| Article 7: |
Converting
Project from Business Cooperation Agreement into
Joint Stock Company
|
|
7.1
|
In
accordance with Article 2.2 of this Agreement, both Parties shall
take the
proper procedures to convert the Business Cooperation Agreement into
a
Joint Stock Company and be willing to cooperate with other partners
who
desire to contribute capital into Joint Stock Company for the purpose
of
building and developing IDC Project’s scale in the
future.
|
|
7.2
|
Terms
and conditions related to charter capital and management of the Joint
Stock Company shall be changed with agreement between parties in
conformity with the Laws of
Vietnam.
|
|
7.3
|
Both
Parties shall be founding shareholders of the Joint Stock Company
and each
Party shall own shares of the Joint Stock Company in accordance with
proportion of contribution of each party to the charter capital of
the
Joint Stock Company
|
PART
III
OPERATIONAL
MATTERS
Article
8: Structure
of Management
|
8.1
|
The
Parties agree that after obtaining Investment Certificate from competent
State agencies, the Parties shall set up a Management Committee to
decide
general matters relating to this Business Co-operation
Agreement.
|
|
8.2
|
Direct
management of business activities (day-to-day) relating to this Agreement
upon decisions of Management Committee shall be responsibility of
Party A,
Party A shall have authorization and obligation to organize the management
team including General Director, Deputy General Director, Chief Accountant
and other officers (the “Management
Team”).
The powers and responsibility of the General Director, Deputy General
Director and Chief Accountant shall be regulated by Party A in compliance
with the decisions of Management Committee.
|
|
8.3
|
Organization
and operating structure of Management
Committee:
|
|
8.3.1
|
Organization
Structure:
|
|
-
|
Management
Committee shall include: 05 (five) members, in
which:
|
| + |
Party
A shall appoint: 03
(three) members
|
| + | Party B shall appoint: 02 (two) members |
|
-
|
The
operation term of Management Committee shall be (CONFIDENTIAL
TREATMENT REQUESTED)
from the date possession of the Location is delivered to Party
A.
|
11
|
-
|
The
Chairperson of Management Committee shall have term of 01 (one) year
and
shall be appointed in rotation by the Parties. The Chairperson of
Management Committee shall be permanent representative of Management
Committee and shall have rights and obligations to approve the
implementation of works and content passed by the Management Committee
on
behalf of the Management Committee.
|
|
-
|
The
member of Management Committee shall be discharged, exempted by a
decision
in writing of the person who is entitled to appoint such member.
This
decision must be sent to the Chairperson of Management Committee
within 05
(five) days from the date of issuing such
decision.
|
|
8.3.2
|
Operation
Structure: All decisions of Management Committee shall only be passed
when
at least 70% of the members in the Management Committee vote to
approve.
|
|
8.4
|
Powers
and obligations of the Management Committee:
|
|
Management
Committee shall be responsible for deciding strategic matter
in respect to
all activities of IDC including but not limited to the
followings:
|
|
8.4.1
|
To
decide business policy, strategy and approve long-term and annual
development plan of the Business Cooperation
Agreement;
|
|
8.4.2
|
To
decide the plan of annual Revenues and Joint Expenditure of Business
Co-operation Agreement.
|
|
8.4.3
|
To
approve accounting reports, financial statement of the Business
Cooperation Agreement (audited) and decide the use and distribution
of
profit in accordance with the laws of
Vietnam;
|
|
8.4.4
|
To
appoint an auditing company for the Business Cooperation Agreement;
|
|
8.4.5
|
To
decide and approve all contracts between the Business Cooperation
Agreement and any parties which not in the ordinary course of business;
|
|
8.4.6
|
To
supervise and control the employees of the Business Cooperation
Agreement;
|
|
8.4.7
|
Other
rights and obligations as provided in the regulations of Vietnamese
laws.
|
| 8.5 |
Organization
and operating structure of Management
Team:
|
|
-
|
The
Management Team shall include:
|
| + | General Director; |
| + | Deputy General Director; |
| + | Chief Accountant; and |
| + | other executive titles as approved by the Management Committee. |
| 8.6 |
Powers
and obligations of the Management
Team
|
|
8.6.1
|
The
Director General shall be the chief executive officer of the Business.
The
Director General shall have general supervision of the affairs of
the
Business, and shall perform all other duties as are incident to the
office
or which are properly required of the Director General by the Management
Committee.
|
|
The
Director General shall be empowered to approve all actions, execute
all
documents and take such other action as necessary to operate and
manage
the Business and which is deemed within the ordinary course of
business.
|
|
8.6.2
|
The
Deputy Director General shall exercise all the functions of the Director
General in the absence or disability of the Director General. Each
Deputy
Director General shall have such powers and discharge such duties
as may
be assigned to such officer from time to time by the Management
Committee.
|
12
|
8.6.3
|
The
Chief Accountant shall have the care and custody of all moneys of
the
Business and shall keep regular books of account. The Chief Accountant
shall disburse the funds of the Business in payment of the just demands
against the Business or as may be ordered by the Management Committee
in
accordance with the requirements of Article
9.
|
Article
9: Accounting
System
|
9.1
|
Accounting
System of the Business Cooperation Agreement including Chief Accountant
and accountants (if any) shall be appointed by Party A in compliance
with
the regulations of Vietnamese laws. The powers and responsibilities
of the
Chief Accountant and accountants (if any) shall be determined by
the
Director in accordance with the Laws on accounting of Vietnam and
other
relevant legal documents.
|
|
9.2
|
The
accounting and reporting system to be adopted and maintained by the
Business Cooperation Agreement and in relation to its financial affairs
shall be established and decided by Party A in conformity with the
Vietnamese accounting principles, standards and
practices;
|
|
9.3
|
All
books of account shall, subject to Ministry of Finance approval,
be
entered and kept in the English and Vietnamese languages and in Vietnamese
Dong and/or United States Dollars. All conversions required for such
purpose shall be made in accordance with the basic exchange rate
issued by
the State Bank of Vietnam at the time of
transaction;
|
|
9.4
|
All
activities relating to this Business Cooperation Agreement must be
accounted separately from any other activities of the Parties and
kept
separately in the accounting system and accounting record of this
Business
Cooperation Agreement;
|
Article
10: Bank
Accounts
|
10.1
|
The
parties shall open a Investment Account for the purpose of Investment
Contribution for the Project (if any) which may be of any nature
whether
denominated in Vietnamese or foreign currency and whether current,
deposit
or otherwise. Such Investment Account may be at a branch of a foreign
bank
in Vietnam or a joint venture bank between a foreign bank and a Vietnamese
bank or a Vietnamese bank as the Parties may agree from time to
time;
|
|
10.2
|
The
Investment Account shall be opened by Party A in accordance with
the terms
of the Business Cooperation Agreement and Party A shall have sole
authority to administer and expend the funds residing in the Investment
Account;
|
|
10.3
|
Party
B shall have, upon a writing notice to Party A prior 24 hours, the
right
to review and inspect all records, documents or other information
related
to the Investment Account.
|
|
10.4
|
Party
A shall be responsible for the opening of the Operating Account which
shall receive of all revenue from the operation of the Business and
remit
payment of all expenses associated with the operation of the IDC,
subject
to the requirements of Article 12.2 and 12.3 and shall keep financial
records in accordance with Article 9 and
14;
|
|
10.5
|
Party
B shall have, upon a writing notice to Party A prior 24 hours, the
right
to review and inspect all records, documents or other information
related
to the Operating Account.
|
Article
11: Fiscal
Year
The
Parties shall adopt as the Fiscal Year of the Business the period beginning
on 1
January and ending on 31 December in each year, provided however, that the
first
Fiscal Year of the Business shall commence on the date of the Investment
Certificate and end on 31 December of that calendar year and the last Fiscal
Year of the Business shall end on the date of termination of this
Agreement.
13
Article
12:
Revenues and Joint Expenditures
|
12.1
|
Subject
to as provided in this Article, the Parties shall jointly conduct
the
business operations and all Revenues generated by the Business shall
be
booked in accordance with the Adopted Accounting
System.
|
| 12.2 |
Revenues
shall mean any and all revenue generated by the Business, including
but
not limited to revenues received
from:
|
· Revenues
generated by the activity of providing product and service
· Revenues
generated by finance activity
·
Revenues
generated by asset
liquidation
·
Other
revenues (if any)
| 12.3 |
Joint
Expenditures of the Business shall include all expenses relating
to
operation of IDC considered as reasonable expenses according to Law
on
Corporate Income Tax of Vietnam and its guiding Decree and
Circular.
|
| 12.4 |
Unless
otherwise agreed by the Parties, expenditures or costs arising out
of or
in relation to the Business not otherwise listed in Article 12.3
above
shall be borne by the Party incurring such expenditure or
cost.
|
Article
13: Profits, Distribution
of Profits and Settlement of Loss
|
13.1
|
Profits
and Distribution of Profits:
|
Subject
to Article 4.1, after payment of all expenses and fulfilling all financial
obligations towards the Government of Vietnam, the Parties shall share Net
Revenues arising out of the Business Cooperation Agreement in proportion to
their respective capital contributions as follows:
| Parties to the Business Cooperation | Distribution ratio | |
| Party A | (CONFIDENTIAL TREATMENT REQUESTED) | |
| Party B | (CONFIDENTIAL TREATMENT REQUESTED) |
|
13.2
|
Loss
Settlement:
|
Subject
to Article 4.1, if the annual result of the Business, after being audited,
shows
that the Business has made a loss, each Party must incur a part of loss in
proportion with its contribution to the Business Cooperation Agreement
(CONFIDENTIAL
TREATMENT REQUESTED) (.
Article
14: Financial
Statements and Audited Accounts
| 14.1 |
Financial
statements and accounting records prepared by the Chief Accountant
shall
be in conformity with the Adopted Accounting System, and shall reflect
and
record the true and fair position of the
Business;
|
| 14.2 |
The
Chief Account shall provide monthly, quarterly, semi-annual and annual
financial statements and accounting records to the Management Committee
for approval. The Management Committee shall approve the monthly,
quarterly, semi-annual and annual records. Upon approval by the Management
Committee copies of the monthly, quarterly, semi-annual and annual
financial statements and accounting records shall be provided to
the
Parties;
|
14
| 14.3 |
The
Chief Accountant shall prepare working capital management plans for
review
and approval by the Management
Committee;
|
| 14.4 |
As
may be required by Vietnamese laws, periodical financial statements
and
accounting records for the Business shall be submitted to the competent
State agencies;
|
| 14.5 |
The
Chief Accountant will at the end of each Fiscal Year prepare year
end
financial statements and accounting records for that year, together
with
notes explaining the accounts in reasonable detail, which shall together
with the books of account of the Business be audited by an independent
auditor;
|
Article
15: Taxes
All
taxes
or other assessments applied to any distribution of Net Revenues or other
payments made in accordance with this Agreement or remittance thereof shall
be
the sole responsibility of the Party which has received such distribution or
payment or made such remittance;
Article
16: Labour
Policies
|
16.1
|
Party
A shall employ all staff and labour (“Employees”) necessary to conduct the
Business;
|
|
16.2
|
The
number, qualifications, salary, compensation and expenses of the
Employees
necessary to operate the Business efficiently and effectively shall
be
determined by the Management
Committee;
|
|
16.3
|
The
Parties will comply in all respects with the Laws of Vietnam relating
to
labour matters affecting Employees;
|
Article
17: Force
Majeure
|
17.1
|
To
the extent that a Force Majeure Event shall prevent directly or indirectly
performance by a Party of any of its obligations under this Agreement
such
obligation shall be suspended and that Party shall to that extent
not be
responsible for any resulting delay, damages or losses in relation
to such
performance. This shall be subject to the Party affected taking all
reasonable measures to overcome or circumvent the Force Majeure Event,
informing the other Party immediately the Force Majeure Event comes
to its
notice and within fifteen (15) days giving notice to the other Party
(supported where appropriate by confirmation of the relevant authorities
at the place of occurrence) with brief particulars of the Force Majeure
Event and the measures being taken to remedy the
same;
|
|
17.2
|
The
Parties agree that both Parties shall take appropriate measures to
avert
or ameliorate the consequence of a Force Majeure
Event;
|
| 17.3 |
If
a Force Majeure Event has prevented and continues to prevent
implementation of the IDC project or the carrying on of the Business
or
the greater part of the Business for a continuous period of more
than 90
(ninety) days, then that shall be a ground for termination of this
Agreement
pursuant to Article 21 below.
|
Article
18: Dispute
resolution
|
18.1
|
The
Parties shall use their best efforts to settle amicably through
negotiations any Dispute;
|
|
18.2
|
If
notwithstanding such best efforts any Party considers at any time
that a
Dispute exists, which it is not possible to settle amicably through
negotiations, such Party may give a notice of such Dispute (“Notice of
Dispute”) to the other Party and giving brief particulars of the Dispute.
If such Dispute is not settled through further negotiations within
thirty
(30) days of the date of service of such Notice of Dispute, it shall
be
referred to the competent court of Vietnam;
|
15
|
18.3
|
The
judgment of competent court shall be final and binding upon the Parties
and the losing Party shall pay the costs of the arbitration unless
otherwise determined by the panel.
|
|
18.4
|
During
and without prejudice to the court process, this Agreement shall
continue
to be performed.
|
Article
19: Duration
- Effect
|
19.1
|
This
Agreement shall be deemed to be effective as of the date of the issuance
of the Investment Certificate.
|
| 19.2 |
The
Term of this Agreement and the Business Cooperation Agreement shall
be
(CONFIDENTIAL
TREATMENT REQUESTED) from
the date possession of the Location is delivered to Party A.
|
| 19.3 |
Not
later than 06 (six) months before expiry of the Term the Parties
will,
unless otherwise agreed between them in writing, agree to extend
the Term
of this Agreement for another term of (CONFIDENTIAL
TREATMENT REQUESTED)
|
Article
20: Termination
resulting from a Default by a Party
If
a
Party:
|
20.1
|
commits
a breach of its obligations under this Agreement that has a material
adverse effect on the Business, or the other Party;
or
|
|
20.2
|
has
an insolvency or bankruptcy order or an order analogous to an insolvency
or bankruptcy order or having a substantially similar effect made
against
it; or
|
|
20.3
|
is
determined by a competent court under Article 18 to have committed
or
suffered an event of default as above;
or
|
|
20.4
|
fails
to comply with a decision issued by the Management Committee within
its
competence as regulated in Article 8.4;
|
and
in
the case of a breach capable of remedy, the Party which fails to remedy the
such
breach within ninety (90) days of notice in writing to do so by the
non-breaching Party then such non-breaching Party shall (without prejudice
to
any other rights or remedies it may have against the defaulting Party) be
entitled at any time to terminate this Agreement.
Article
21: Termination
not arising from a Default by a Party
| 21.1 |
If
at
least one of the following categories of continuing events has occurred
and is continuing
either Party may give notice to the other Party identifying the event
so
determined
and notifying the other Party that it wishes to terminate this
Agreement:
|
|
21.1.1
|
enactment,
application or interpretation of any law in Vietnam the effect of
which is
to nationalise or expropriate or enforce disposal of all or any of
the
assets of the Business Cooperation Agreement or of a Party or impose
a
reduction of a Party' share of the investment capital actually invested
or
its Revenues share; or to prevent or render impracticable or significantly
more onerous the performance by a Party of its obligations under
this
Agreement or to affect materially and adversely, directly or indirectly,
any of the rights or economic benefits of a Party under this
Agreement;
|
|
21.1.2
|
any
changes in circumstance whether of a legal nature or in the viability
or
suitability of the terms and conditions of this Agreement, the Business
Plan, Financial Projection which make the continuation of the Business
and
implementation of this Agreement economically or legally
unfeasible;
|
16
|
21.1.3
|
an
event occurs which under the Laws of Vietnam entitles a Party to
terminate
this Agreement;
|
|
21.1.4
|
Business
result of this Agreement (after the audition process) shows loss
of profit
in 03 (three) continuous years.
|
|
21.1.5
|
A
Force Majeure Event has prevented and continues to prevent implementation
of the Business or the greater part of the Business for a continuous
period of more than 90 (ninety) days;
|
then
the
Parties shall within a period of 15 (fifteen) days after such notice is given
commence negotiations and endeavor to resolve the problems arising out of the
causative event. If matters are not resolved to the satisfaction of both Parties
within 30 (thirty) days after notice is given or, if the non-notifying Party
declines to commence negotiations, within the said period of 30 (thirty) days,
then the notifying Party may terminate this Agreement and seek dispute
resolution in accordance with Article 18.
|
21.2
|
This
Agreement shall terminate automatically on the occurrence of any
of the
following events:
|
| 21.2.1 |
the
Parties agree in writing to terminate this Agreement;
or
|
|
21.2.2
|
a
judgment is made in accordance with Article 18 of this Agreement
which
directs that this Agreement be terminated in circumstances otherwise
than
after an Event of Default.
|
Article
22: Termination
Procedure
|
22.1
|
In
case of early termination pursuant to Article 20 or 21, the
Joint-Management Committee shall immediately proceed with the termination
procedure
|
| 22.1.1 |
In
the case of termination by default of Party A, all further obligations
of
Party B under this Agreement shall thereupon terminate, except that
Item
4.5.3, 18, and 23 shall survive and Party B’s right to pursue all legal
remedies shall survive the termination of this Agreement unimpaired.
Further, upon default by Party A, all assets owned by Party A must
be
removed from the Location within 6 months; provided, however that
Party B
may, at its election, decide to purchase all assets owned by Party
A at
the aggregate fair market value of such assets agreed to by both
parties,
as of the date of default, upon written notice to Party A and receipt
by
Party A of payment equal to the aggregate fair market value of such
assets. Further, Party B shall be entitled to liquidate damages determined
by the following formula:
|
|
(Total
Net Profit for the last 12 months)
|
x
(CONFIDENTIAL
TREATMENT REQUESTED)
|
x
(the number of months remaining in the Term)
|
|
________________________________________________________________________
12
|
||
Such
amount to be paid to Party B within 12 months of an event of default;
and
| 22.1.2 |
In
the case of termination by default of the Party B: all further obligations
of Party A under this Agreement shall thereupon terminate, except
that
Item 4.5.3, 18 and 23 shall survive and Party A’s right to pursue all
legal remedies shall survive the termination of this Agreement unimpaired.
Further, upon default by Party B, all assets owned by Party A may
be
removed from the Location within 6 months; provided, however that
Party A
may, at its election, require Party B to purchase all assets owned
by
Party A at the aggregate fair market value of such assets agreed
to by
both parties, as of the date of default, upon written notice to Party
A
and receipt by Party A of payment equal to the aggregate fair market
value
of such assets. Further, Party A shall be entitled to liquidate damages
determined by the following
formula:
|
|
(Total
Net Profit for the last 12 months)
|
x
(CONFIDENTIAL
TREATMENT REQUESTED)
|
x
(the number of months remaining in the Term)
|
|
________________________________________________________________________
12
|
||
17
Such
amount to be paid to Party A within 12 months of an event of
default.
| 22.1.3 |
In
the case of termination not arising from a default of a Party : The
parties shall agree the distribution of Project value at the termination
moment to each Party in proportion to its capital contribution by
the
liquidation in favor of a Party or a third Party or under other agreement
(if any).
|
| 22.1.4 |
During
the term of the Business Cooperation Agreement or at anytime prior
to the
effective termination of the Agreement pursuant to Articles 18, 20
or 21
in the event of a proceeding, claim or lawsuit not arising from a
breach
by either Party which results in damages to be paid by the Parties
under
the decision of a court of competent jurisdiction, then the Parties
shall
be responsible for such damages in proportion to capital contribution
of
each Party.
|
Article
23: Confidentiality
Each
Party pledges to make its employees, Management Committee and leaders keep
in
confidence any information and not disclose to any third party the details
of
the negotiations between the Parties, the content of this Agreement, or any
other documents in relation to the above-mentioned matters and any other
relevant information (confidential information), without obtaining the prior
written consent of the other Party, except to the extent that:
|
23.1
|
Such
disclosure of such information is legally requested by any Government
regulatory agency of each Party; or
|
|
23.2
|
The
disclosure of information is made to professional advisers of such
Party
or to the personnel or affiliates of that Party provided that such
disclosure is made by way of signing a confidentiality agreement,
and
those to whom such disclosure is undertaken to abide by the confidential
provisions as set out in this Agreement;
or
|
|
23.3
|
The
confidential information disclosed by the disclosing Party belongs
to the
public domain.
|
| 23.4 |
Public
announcement: Each Party agrees that it will not make public announcement
any of the
discussions in relation to this Agreement, Business Plan or any related
information under any form whether a press release or otherwise without
prior discussion and prior consent
in writing of the other Party;
|
|
23.5
|
Confidentiality effect:
Despite the fact that this Agreement could be terminated in any case,
the
parties agree that the provisions of confidentiality still remain
in
effect and have binding value on the Parties within 03 (three) years
since
the termination of this Agreement.
|
18
Article
24: Governing
Laws
|
24.1
|
This
Agreement is made and construed in accordance with the Law of the
Socialist Republic of
Vietnam;
|
|
24.2
|
Any
matters for which this Agreement makes no provision shall be dealt
with in
accordance with the Law on Investment and any relevant stipulations
of the
Investment Certificate and provisions of the Law of the Socialist
Republic
of Vietnam shall apply to the interpretation
thereof.
|
Article
25: Insurance
Insurance
policies of the Business Cooperation Agreement on various kinds of risks shall
be purchased from a Vietnamese insurance company and/or a foreign insurance
company permitted to operate in Vietnam. The types, the value and the term
of
insurance shall be based on decision of the Management Committee, in accordance
with the practice of similar businesses in other countries and the practice
in
Vietnam, and shall be in compliance with the Laws of Vietnam.
Article
26: Liquidation
|
26.1
|
Upon
the expiration or early termination of the Agreement, the Business
Cooperation Agreement shall appoint a Liquidation Committee and carry
out
the procedures for liquidation of the properties of the Business
Cooperation Agreement in compliance with relevant laws. Within at
least 30
(thirty) days prior to expiration of the Agreement or within 30 (thirty)
days since the date of issuance of a decision on early termination
of the
Agreement, the Management
Committee shall
set up the Liquidation Committee and define concrete responsibilities
of
the Liquidation Committee. Members of the Liquidation Committee may
be
selected from the Business Cooperation Agreement’s staffs or experts from
outside.
|
|
26.2
|
After
the full repayment of debts, the residual assets of the Business
Cooperation Agreement, including the residual funds in the depreciation
account, reserve fund, and other funds of the Business Cooperation
Agreement, shall be distributed to the Parties in proportion to their
share in the capital contribution.
|
| 26.3 |
After
the completion of the liquidation, the Management Committee shall
present
a report on the liquidation and settlement of accounts to the Authorities.
The Business Cooperation Agreement
shall also go through procedures for the cancellation of registration
at
local competent authority and return the Investment Certificate for
cancellation.
|
Article
27: Representations
and Covenants
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27.1
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Each
of the Parties makes the following representations and covenants
to the
other Party concerning itself and its participation in this
Agreement:
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| 27.1.1 |
It
has the legal capacity and power to enter into this
Agreement;
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|
27.1.2
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Obtain
all consents, permits and licenses, approval and authorizations necessary
to enter into this Agreement;
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27.1.3
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This
Agreement constitutes lawful, valid and binding obligations enforceable
against it in accordance with the terms and conditions of this
Agreement;
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27.1.4
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It
will develop, maintain and operate the Business Cooperation Agreement
in
accordance with the Laws of Vietnam and within the requirements of
Vietnam
national security;
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27.1.5
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It
will act diligently, in good faith and honestly in performing its
responsibilities and discharging its obligation
hereunder;
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19
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27.1.6
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It
shall fulfill all of its financial obligations to the Government
in
accordance with the Law on Investment and other laws of Vietnam,
as
stipulated in this Agreement and the Investment Certificate,
and
|
| 27.1.7 |
Each
Party shall not be liable to discharge the other Party’s
obligation;
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27.1.8
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Each
Party and its affiliates shall fully perform its obligation on
contribution of investment capital to the Business as described in
Article
4 subject to the terms and conditions in the
Agreement.
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27.2
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If
any above representation and covenants are false or inaccurate in
any
respect, it will constitute a breach by that Party of this Agreement
to
the extent that it has a material adverse effect on the Business
Cooperation Agreement.
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Article
28: Notices
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28.1
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Notice
to a Party and to a member of the Management Committee must be given
in
writing and must be delivered by hand or sent by registered or guaranteed
mail for domestic delivery or by internationally recognized express
mail
service company for internationally delivery or by facsimile transmission
to its or his legal address.
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|
28.2
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The
legal address for each Party is its legal address and address for
receiving notices and fax number given in Part I of this Agreement
or such
other legal address and fax number of which the Party shall have
given
notice in accordance with this Article to the other Parties and which
it
shall have registered with the competent
authority.
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|
28.3
|
The
legal address for a member of the Management Committee shall be his/her
address for receiving notices and fax number of which notice shall
have
been given to all the Parties in accordance with this
Article.
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|
28.4
|
Any
notice shall be deemed to have been given on the day of delivery
by hand
or acknowledged facsimile transmission or on the date of receipt
if sent
by registered or guaranteed mail or internationally recognized express
mail service company unless in any such case that day is a non-working
day
including a Sunday or a public holiday in the country of the receiver
in
which case the notice shall be deemed to have been given on the next
working day.
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Article
29: Languages
and Copies
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29.1
|
Languages:
This Agreement is made in two languages of equal validity, English
and
Vietnamese. In the event that there is any misunderstanding between
the
English version and the Vietnamese version, the Parties agree to
refer to
the Vietnamese version.
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|
29.2
|
This
Agreement shall be made in 04 (four) originals of equal validity,
in
English and in Vietnamese.
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Article
30: General
Matters
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30.1
|
This
Agreement constitutes the entire agreement and understanding of the
Parties in relation to the subject matter thereof and supersedes
all
previous understandings between them whether written or oral which
are
hereby declared to be null and
avoid.
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|
30.2
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No
amendment or variation of/or supplement to this Agreement shall be
valid
unless it is in writing and signed by or on behalf of each of the
Parties
hereto and (where such approval is required) approved by relevant
State
agencies.
|
|
30.3
|
No
provision of this Agreement will be considered waived unless the
waiver is
in writing and signed on behalf of the person waiving the provision
and
approval from the other party.
|
20
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30.4
|
Save
as expressly provided to the contrary, the rights and remedies provided
under this Agreement are cumulative and not exclusive of any rights
and
remedies provided by law.
|
|
30.5
|
Where
no time is specified in this Agreement within which any obligation
shall
be performed, such obligation shall be performed without unreasonable
delay.
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30.6
|
If
any further document is necessary, each Party undertakes that it
will
promptly and duly execute, sign, perfect and deliver (and if required
register) every such further document as in the reasonable opinion
of the
other Party may be required for the purpose of more effectively carrying
out the intent and purpose of this Agreement, the Business Plan and
Financial Projection.
|
|
30.7
|
This
is commercial Agreement between the Parties, in a legal action between
the
Parties (including in any arbitration, pursuant to Article 18 above)
no
Party will raise the defense that it can not be sued by the other
Party
because it is government owned or because the Agreement is a government
Agreement. Each Party waives any immunity or privilege to which it
may be
entitled.
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30.8
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Any
obligation herein expressed or implied to obtain approval, license
or
permit of relevant State agencies shall remain in force for so long
only
as such approval, license or permit shall be required by the Law
of
Vietnam.
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30.9
|
If
any provision of this Agreement shall be held invalid or unenforceable,
the same shall not in any way whatsoever affects the enforceability
or
validity of the remainder of this
Agreement.
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21
IN
WITNESS WHEREOF,
the
legal representatives of Parties signed and sealed this Agreement on the date
mentioned at the beginning:
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FOR
AND ON BEHALF OF
|
FOR
AND ON BEHALF OF
|
||
| DOT VN COMPANY LIMITED |
XXXXX
XXXXX SOFTWARE CITY DEVELOPMENT COMPANY
|
||
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Signature
: /s/ Xxxxx Xxx Xxxxxxx
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Signature
: /s/ Xxx Xxxx Xxxx
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||
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Name
: Xx. Xxxxx Xxx Xxxxxxx
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Name
: Xx. Xxxxxx Xxx Xxxx
|
||
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Position
: General Director
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Position
: Deputy Director
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22
