Hanoi, _________ __, 2010 DOT VN, INC. AND VIETNAM TELECOMMUNICATIONS AND INTERNET, JSC BUSINESS CO-OPERATION AGREEMENT
Xxxxxxx
00.00
Xxxxx,
_________ __, 2010
AND
VIETNAM
TELECOMMUNICATIONS AND INTERNET, JSC
BUSINESS
CO-OPERATION AGREEMENT
CONTENTS
Page
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PART
I
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1
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LEGAL
BASIS AND PARTIES
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1
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PART
II
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2
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PRINCIPAL
CONTENTS
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2
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Article
1:
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Definitions
and Interpretation
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3
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Article
2:
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Purposes
and Scope of Cooperation
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5
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Article
3:
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Details
of the Project
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6
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Article
4:
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Contribution
of the Parties
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6
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Article
5:
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Rights
and Obligations of the Parties
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8
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Article
6:
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Conditions
Precedent
|
9
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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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10
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|
OPERATIONAL
MATTERS
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10
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Article
8:
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Structure
of Management
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10
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Article
9:
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Accounting
System
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12
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Article
10:
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Bank
Accounts
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13
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Article
11:
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Fiscal
Year
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13
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Article
12:
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Revenues
and Joint Expenditures
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13
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Article
13:
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Profits,
Distribution of Profits and Settlement of Loss
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15
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Article
14:
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Financial
Statements and Audited Accounts
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16
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Article
15:
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Taxes
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17
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Article
16:
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Labour
Policies
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17
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Article
17:
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Force
Majeure
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18
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Article
18:
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Dispute
resolution
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18
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Article
19:
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Duration
– Effect
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18
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Article
20:
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Termination
resulting from a Default by a Party
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19
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Article
21:
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Termination
not arising from a Default by a Party
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19
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Article
22:
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Termination
Procedure
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20
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Article
23:
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Confidentiality
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21
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Article
24:
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Governing
Laws
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22
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Article
25:
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Insurance
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22
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Article
26:
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Liquidation
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22
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Article
27:
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Representations
and Covenants
|
23
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Article
28:
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Notices
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23
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Article
29:
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Languages
and Copies
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24
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Article
30:
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General
Matters
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24
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PART
I
LEGAL
BASIS AND PARTIES
BASED
ON:
(i)
|
The
Law on Investment No.59/2005/QH11 approved by The National Assembly of
Socialist Republic of Vietnam on 29 November
2005;
|
(ii)
|
The
Law on Information and Technology No.67/2006/QH11 approved by The National
Assembly of Socialist Republic of Vietnam on 29 June
2006;
|
(iii)
|
Pursuant
to the Tax Administration Law No. 78/2006/QH11 November 29, 2006 and
guiding documents;
|
(iv)
|
Pursuant
to Corporate Income Tax Law 14/2008/QH12 June 3, 2008 and other guiding
documents;
|
(v)
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Pursuant
to Decree 160/2006/ND-CP of December 28, 2006 of the Government detailing
the implementation of some articles of the Ordinance on Foreign
Exchange;
|
(vi)
|
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;
|
(vii)
|
Circular
No. 186/2010/TT-BTC by the Ministry of Finance issued November 18, 2010
guiding the transfer of profits abroad by foreign institutions, foreign
individuals can profit from the beginning direct investment in Vietnam
under the investment provisions of the
Law
|
(viii)
|
The
result of the negotiation between Parties on cooperating to execute the
XXXX.XX project (the “Business”).
|
The
Parties to this Business Cooperation Agreement shall comprise:
(A)
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Party
A:
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1.
|
Name: DOT VN, INC. a Delaware
corporation, duly established on May 27, 1998 and validly existing under
the laws of the State of Delaware.
|
|
2.
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Registered
address:
|
0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX
00000
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Telephone:
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0000.000.0000
|
Fax:
000.000.0000
|
|
3.
|
Business
Registration Certificate No.: 2899848
|
|
Date: 05/27/1998
|
Issued
by: Delaware
|
4.
|
Authorized
Representative: Xxx Xxxxxxx
|
Position: President
Nationality:
USA
Permanent
Address: 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, XX 00000
1
And
(B)
|
Party
B:
|
|
1.
|
Name: VIETNAM
TELECOMMUNICATIONS AND INTERNET, JSC, a private joint stock company
duly established under Business License No. 0103016243 dated March 19,
2007 issued by the Hanoi Department of Planning and Investment and validly
existing under the laws of Vietnam.
|
|
2.
|
Register
address: 000 Xxx Xx Xxxxxx, Xx Xxxx Xxxxxxxx, Xxxxx
Xxxxxxx.
|
Telephone:
x00.0.000.0000 Fax:
x00.0.000.0000
|
3.
|
Business
Registration Certificate No.:
0103016243
|
Dated:
3/19/2007
Issued
by: City of Hanoi
|
4.
|
Authorized
Representative:
|
Xxxx
Xxx Xxx
|
Position:
General Director
Nationality: Vietnamese
Permanent
Address: 000 Xxx Xx Xxxxxx, Xx Xxxx Xxxxxxxx, Xxxxx Xxxxxxx.
WHEREAS:
(A)
|
Party
A and Party B wish to own, develop, design and operate a web platform for
news, entertainment, an online business directory, social media and
electronic advertising (the
“Project”);
|
(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
|
2
1.1
|
Definitions
|
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 XXXX.XX 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
XXXX.XX;
“Business Plan” means the
business projections and plans mutually agreed by both Parties as may be amended
in accordance with situation of the Party(s) and Vietnamese market conditions
from time to time;
“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 agreed by the Parties;
“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;
3
“XXXX.XX” means the web portal
XXX.XXXX.XX to be developed jointly by the Parties as more
particularly described in Article 3 (Details of the
Project)
“Joint Account” means any bank
account of the Business opened and operated under the joint signatures of the
Parties in accordance with Article 10 of this Agreement;
“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;
“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;
“Licenses” means the any
applicable Licensess and/or its amendment (s) as issued by competent authorities
to the Parties with respect of the Business;
“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;
“Party” means Party A or Party
B individually and "Parties" means Party A and
Party B collectively;
“Project” means the development
and operation of XXXX.XX through the use of registry monetization and the
execution of the Business by the Agreement, as more particularly described in
Article 3 (Details of the Project);
"Repatriated Profit" means the
profit due to non-Vietnamese investors which may be transferred to foreign
countries. Repatriated Profit distributed or legally obtained from the direct
investment activities in Vietnam under the Investment Law, after full compliance
of financial obligations to the State of Vietnam under existing regulations or
such amendments as may be made from time to time.
“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;
4
“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;
1.2
|
Interpretation:
|
(a)
|
Any
expression which is not specifically defined in this Agreement but is
defined by reference to the Articles shall be construed
accordingly;
|
(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;
|
(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;
|
(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;
|
(e)
|
The
headings are for convenience only and shall not affect the interpretation
hereof.
|
(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;
|
(g)
|
Every
defined term shall whenever used in any of its other grammatical versions,
be construed accordingly; and
|
(f)
|
References
to party and parties shall be construed as references to a party or the
parties to this Agreement.
|
Article
2:
|
Purposes and Scope of
Cooperation
|
2.1
|
The
two Parties agree to co-operate in establishing and operating XXXX.XX with
the goal of providing a variety of online services, including but not
limited to, news, entertainment, an online an online business directory,
social media and online
advertising.
|
5
2.2
|
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 accounting and the overall
management of business activities shall be executed by Party B. 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.
|
2.3
|
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
|
Name
of the Project
|
:
|
Establishment
of xxx.xxxx.xx
|
Initial
Total Investment Capital of the Project
|
:
|
US
$ 1,000,000 (One Million US Dollars)
|
Operation
term of the Project
|
:
|
50
(fifty) years from the date of this Agreement
|
Progress
of the Project
|
:
|
- Expected
launch of commercial services on XXXX.XX: 3-4 months
- Expected
launch of social network: 7-9 months
|
Main
services of the Project
|
:
|
-News
and Entertainment;
-Online
Business Directory;
-Social
Media; and
-Online
Advertising
|
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 estimated amount of up to US $750,000 (Seven Hundred
Fifty Thousand US Dollars) by equipment, machines,
facility construction expenses, software development and programming, means of
operating XXXX.XX, expertise, know-how and working capital to the Business
Cooperation Agreement equivalent to 75% of total Investment
Capital.
6
Party B
shall contribute the equivalent of up to US$ 250,000 (Two Hundred Fifty
Thousand US Dollars) by providing staff, businesses Licenses and other
in-country support, equivalent to 25% of total Investment Capital.
However,
both Parties agree that to the extent that additional contribution is required
to complete XXXX.XX (the “Additional Contribution”) in excess of the US$ 1,000,000 Initial Total
Investment Capital, both Parties shall have the right to contribute such working
capital, equipment, or other reasonable consideration to maintain their pro rata
holding of the total Investment Capital. In the event that a party
does not invest Additional Contribution, their pro rata holding shall be
adjusted in accordance with percentage of contribution to the aggregate
Investment Capital which includes (i) the Investment Capital of US$ 1,000,000 (One Million US
Dollars); plus (ii) any Additional Contribution.
4.2
|
Schedule
of Contribution:
|
4.2.1
|
Party
A:
|
- Party
A shall be accountable to finance for the procurement of the following items
which shall be included in 75% of total Investment Capital:
|
(i)
|
XXXX.XX
Software Design and Development Fees including but not limited to fees for
creation of User Interface, Database development, and any related
applications;
|
|
(ii)
|
XXXX.XX
Hardware and Equipment Costs including but not limited to servers, data
center equipment, network equipment and hosting facility
costs;
|
|
(iii)
|
Expenses
of operating XXXX.XX (management expenses, salary, employment
expenses…);
|
|
(iv)
|
All
fees and expenses relating to training and transfer technology [if
any];
|
|
(v)
|
Vehicles
used for network operation and management [if
any];
|
|
(vi)
|
Working
capital;
|
|
(vii)
|
Office
equipments, etc.
|
4.2.2
|
Party
B
|
- Party
B shall contribute its Licenses related to the operation of an internet news
portal as well as provide all staff related to the operation of the
Project. Such contribution shall be equivalent to 25% of
total Investment Capital.
7
4.3
|
Any
cash contributed by the Parties shall be deposited in a Joint Account in
Vietnam;
|
4.4
|
Any
contribution of each Party which is not 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 assessment organization duly
registered and operating in Vietnam or a foreign country 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 of this Agreement shall still be owned by the
Party who contributes those assets during the
Term;
|
4.5.2
|
The
assets to be purchased by the Joint 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.
|
4.5.3
|
The
parties agree that upon termination of the Business Cooperation Agreement,
all assets described as parts of a Party’s contribution to the Project
shall be return to such party. Joint Assets (if any) shall be distributed
to parties 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 XXXX.XX;
|
5.1.2
|
To
be accountable to finance the procurement of the equipments/facilities in
order to set up and operate XXXX.XX pursuant to the requirements of
Article 4.1.
|
5.1.3
|
To
be responsible for managing and running the process of setting up,
building and completing XXXX.XX and promptly report the progress to Party
B.
|
5.1.4
|
To
be responsible for preparing a Business Plan approved by the
Parties;
|
5.1.5
|
To
appoint personnel to participate in management of
XXXX.XX;
|
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
XXXX.XX.
|
5.1.7
|
To
assist Party B in procedure of importing equipments to Custom offices and
other procedures related to the establishment, management and operation of
XXXX.XX and contemplated services.
|
8
5.2
|
The
Party B shall have the following rights and
obligations:
|
5.2.1
|
To
obtain the necessary Licenses to operate the Project: Party B shall be
responsible for completion of the project profile and other procedures in
order to apply for any applicable Licenses or certificates (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
XXXX.XX;
|
5.2.3
|
To
participate in making strategy and plan for development of
XXXX.XX;
|
5.2.4
|
To
appoint personnel to participate in management of
XXXX.XX;
|
5.2.5
|
To
manage, run and operate XXXX.XX in accordance with approved Business
Plan;
|
5.2.6
|
To
support the execution of Business Plan including but not limited to
advertising and promotions for
XXXX.XX;
|
5.2.7
|
To
co-ordinate with Party A in setting up and operating
XXXX.XX;
|
5.2.8
|
To
be responsible for procedure of importing equipments to Custom offices and
other procedures related to the establishment, management and operation of
XXXX.XX 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 has provided Party A with a copy of documents required to operate an
online newspaper and provide online advertising
services;
|
6.2
|
The
parties having performed all of the covenants and obligations required to
be performed or caused to be performed by it under this Agreement;
and
|
6.4
|
Completion
of a beta test of the XXXX.XX web
site.
|
9
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
enlarging and/or enhancing the 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, provided however, the
share of Party A shall be equal or more than 51% of the Capital
Contribution of the Joint Stock
Company.
|
PART
III
OPERATIONAL
MATTERS
Article
8:
|
Structure of
Management
|
8.1
|
The
Parties agree that after obtaining any necessary Licenses 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
organization including Director, Deputy Director, Chief Accountant and
other members of the Agreement. The competent and responsibility of the
Director, Deputy Director and Chief Accountant shall be regulated by Party
A in compliance with the decision of Management
Committee.
|
8.3
|
Organization
and operation structure of Management
Committee:
|
8.3.1
|
Organization
Structure:
|
|
-
|
Management
Committee shall include:
|
03
(three) members, in which:
|
|
+
|
Party
A shall appoint:
|
02
(two) members
|
|
+
|
Party
B shall appoint:
|
01
(one) member
|
|
-
|
The
operation term of Management Committee shall be 50 (fifty)
years
|
|
+
|
The
term of Management Committee’s member shall be 01 (one)
year
|
|
+
|
Member
of Management Committee can be re-appointed for unrestricted number of
terms.
|
10
|
-
|
The
Chairperson of Management Committee shall be elected by the members of
Management Committee/ the Parties shall agree on appointment of the
Chairperson of Management Committee. The Chairperson of Management
Committee shall be permanent representative of Management Committee and
shall have power and obligation to conclude contracts relating to
activities of this Business Cooperation Agreement on behalf of the
Management Committee.
|
|
-
|
The
member of Management Committee shall be discharged or removed 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 be approved by a
majority of Management Committee
members.
|
8.4
|
Powers
and obligations of the Management
Committee:
|
Management
Committee shall be responsible for deciding strategic matter in respect to all
activities of XXXX.XX including but not limited to the followings:
|
8.4.1
|
To
decide business policy, strategy and approve long-term and annual
development plans 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 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 the conclusion of all contracts between the Business Cooperation
Agreement with any partner;
|
|
8.4.6
|
To
supervise, control and replace (as and when needed) 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. |
11
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.
|
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 B 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 B 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 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 Party
B;
|
12
Article
10:
|
Bank
Accounts
|
10.1
|
The
parties shall open a Joint 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 Joint 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
Joint Account shall be opened in accordance with the decisions of the
BusinessCooperation
Agreement;
|
USD Account Number:
Opened at:
Address:
Swift Code:
Account Name:
VND Account Number:
Opened at:
Address:
Swift Code:
Account Name:
Party B
shall oversee and managed all bank accounts subject to approval of the
Management Committee.
10.3
|
Party
B shall be responsible for receipt of all revenue and payment of all
expenses associated with the operation of XXXX.XX, subject to the
requirements of Article 12.2 and 12.3 and shall keep financial
records in accordance with Article 9 and
14;
|
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 Business
Cooperation Agreement and end on the next 31 December 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:
|
|
(a)
|
operational
expenditures of the Business, including but not limited to, utilities,
rent or sales commissions
|
|
(b)
|
insurance
costs related to the Business
|
|
(c)
|
repair
and maintenance of equipment, buildings and other assets of the Business
except for supplier’s warranties;
|
|
(d)
|
Salaries,
benefits and other compensation due to the Employees, excluding members of
the Management Committee, according to the joint salary
scale;
|
|
(e)
|
interest
on any debt incurred by the Parties in connection with the
Business;
|
|
(f)
|
fees,
costs and expenses arising out of bad
debt;
|
|
(g)
|
import
and export taxes, value add tax to be paid for the Business, customs
duties of the Business;
|
|
(h)
|
communication
expenses of the Business;
|
|
(i)
|
costs
of office appliances or office
supplies;
|
|
(j)
|
Legal
fees, documentation and consulting fee for obtaining the Licenses and
other professional fees including external consulting and advisory
services.
|
|
(k)
|
Other
miscellaneous Business expenses agreed to be necessary by the Management
Committee.
|
14
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
|
[75 | %] | ||
Party
B
|
[25 | %] |
13.2
|
Repatriated
Profits
|
|
(a)
|
Party
A may at their election transfer annually profits derived from the direct
investment activities in Vietnam to its country of origin at the end of
the fiscal year provided that Party B has complied with all financial
obligations to the State Vietnam under the provisions of law, has filed
all the audited financial statements and settled all declarations of
corporate income tax for the fiscal year directly to the tax
administration agency.
|
|
(b)
|
Party
A may at their election transfer profits abroad upon termination of direct
investment activities in Vietnam provided that Party B has complied with
all financial obligations to the State of Vietnam under the provisions of
law, has filed all the audited financial statements and settlement all
declarations of corporate income tax for the fiscal year directly to the
tax administration agency and fully met obligations under the provisions
of the Tax Administration Law.
|
|
(c)
|
Party
A authorizes Party B to provide notice of the transfer of profits abroad
in the form submitted to its directly managed tax offices, before making
the transfer of profits abroad for at least 07 working
days.
|
15
|
(d)
|
Repatriated
Profits due to Party A at the end of the fiscal year from the direct
investment activities shall be based on (i) profit reported on audited
financial statements and/or the declaration of income tax filed by Party
B; (ii) plus any unpaid profits from prior periods; (iii) minus any
amounts Party A has committed to use for reinvestment in Vietnam; (iv)
minus any accrued business expenses related to Party A’s involvement in
the Project
|
|
(e)
|
Repatriated
Profits due to Party A upon termination of investment activities in
Vietnam shall be based on total profits earned in the process of direct
investment in Vietnam; (ii) minus profits used for reinvestment, the
profits were transferred abroad in the course of activities of Party A in
Vietnam and the amounts used for other expenditures of Party A in
Vietnam.
|
|
(f)
|
Party
A may not transfer abroad the profits that are distributed or obtained
from direct investment activities in Vietnam wherein the financial
statements show a profit for the year but reflects accumulated losses
after giving effect to the loss transfer provisions of the Law on
Corporate Income Tax.
|
|
(g)
|
Accounts
received profits transferred abroad by Party A as
follows:
|
|
USD
currency account number:
|
|
Bank:
|
|
Address:
|
|
Swift
Code:
|
|
Name
of Beneficiary: DOT VN INC.,
|
|
Party
A may at any time change in its sole and absolute
discretion.
|
13.3
|
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 (Party A
75%; Party B 25%).
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 quarterly,
semi-annual and annual records. Upon approval by the Management Committee
copies of the quarterly, semi-annual and annual financial statements and
accounting records shall be provided to the
Parties;
|
16
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;
|
14.6
|
The
quarterly financial statements and accounting records prepared by the
Chief Accountant shall be reviewed by an independent auditor in accordance
with the accounting procedures determined by the Management
Committee;
|
14.7
|
The
audited accounts prepared for each Fiscal Year shall be submitted to the
competent State agencies in accordance with relevant Vietnamese
regulation;
|
14.8
|
The
fees of and expenses incurred by the independent auditor shall constitute
a Joint Expenditure.
|
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
B 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;
|
16.4
|
The
Business shall reimburse Party B for its actual cost to provide Employees
to include, but not limited to, taxes and
insurance
|
17
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 XXXX.XX 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;
|
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
|
The
initial Term of this Agreement, the Business Cooperation Agreement, shall
be for a period of 50 (fifty) years from the effective date of this
Agreement;
|
19.2
|
Not
later than 06 (six) months before expiration 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 50 (fifty)
years.
|
18
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 iscontinuing either Party may give notice to the other Party
identifying the event sodetermined 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;
|
21.1.3
|
an
event occurs which under the Laws of Vietnam entitles a Party to terminate
this Agreement;
|
19
21.1.4
|
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 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 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 (25%) 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
20
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 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 B 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 (75%) x
|
(the
number of months remaining in the Term)
|
12
|
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 required or 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
|
21
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 for 03 (three) years from the
termination of this Agreement.
|
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
Licenses 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 Licenses for
cancellation.
|
22
Article
27:
|
Representations and
Covenants
|
27.1
|
Each
of the Parties makes the following representations and covenants to the
other Party concerning itself and its participation in this
Agreement:
|
27.1.1
|
It
has the legal capacity and power to enter into this
Agreement;
|
27.1.2
|
It
has obtain all consents, permits and Licenses, approval and authorizations
necessary to enter into this
Agreement;
|
27.1.3
|
This
Agreement constitutes lawful, valid and binding obligations enforceable
against it in accordance with the terms and conditions of this
Agreement;
|
27.1.4
|
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;
|
27.1.5
|
It
will act diligently, in good faith and honestly in performing its
responsibilities and discharging its obligation
hereunder;
|
27.1.6
|
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 Licenses,
and
|
27.1.7
|
Each
Party shall not be liable to discharge the other Party’s
obligation;
|
27.1.8
|
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.
|
27.2
|
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.
|
23
Article
28:
|
Notices
|
28.1
|
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.
|
28.2
|
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 MPI.
|
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.
|
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.
|
Article
29:
|
Languages and
Copies
|
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 English version.
|
29.2
|
This
Agreement shall be made in four originals of equal validity, in English
and in Vietnamese.
|
Article
30:
|
General
Matters
|
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.
|
30.2
|
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.
|
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.
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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 cannot 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.
|
30.8
|
Any
obligation herein expressed or implied to obtain approval, Licenses or
permit of relevant State agencies shall remain in force for so long only
as such approval, Licenses or permit shall be required by the Law of
Vietnam.
|
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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IN WITNESS WHEREOF, the legal
representatives of Parties signed and sealed this Agreement on the date
mentioned at the beginning:
FOR
AND ON BEHALF OF
|
FOR
AND ON BEHALF OF
|
|||
VIETNAM TELECOMMUNICATIONS AND INTERNET, JSC | ||||
/s/
Xxx Xxxxxxx
|
/s/
Xxxx Xxx Xxx
|
|||
Name: Xx.
Xxx Xxxxxxx
|
Name:
Xx. Xxxx Xxx Xxx
|
|||
Position: President
|
Position:
General Director
|
26