The Purchase Price shall be paid by the BUYER either in the currency of USDthe exchange rate is to be fixed in accordance with the prevailing average buying and selling rate of VietcomBa
Trang 1TẬP ĐOÀN DẦU KHÍ QUOC | GIA VIETNAM CONG HOA XA HOI CHU NGHIA VIET NAM
DICH VU KY THUAT DAU KHi VIET NAM
56: 005 /QD-DVKT-HDOQT Tp HCM, ngay del thang 7 nam 2011
QUYÉT ĐỊNH
Về việc phê duyệt nội dung hợp đồng chuyển nhượng cỗ phần PTSC Phú Mỹ
; ; _ HỘI ĐÔNG QUẦN TRỊ
TONG CONG TY CO PHAN DICH VU KỸ THUẬT DÀU KHÍ VIỆT NAM
Căn cứ Luật Doanh nghiệp đã được Quốc hội nước Cộng hòa xã hội chủ nghĩa
Việt Nam thông qua ngày 29/11/2005 và có hiệu lực kê từ ngày 01/07/2006;
Căn cứ Điều lệ của Tổng công ty cổ phần Dịch vụ Kỹ thuật Dâu khí Việt Nam;
Xét Tờ trình số 2221/TTr-DVKT ngày 20/7/2011 của Tổng giám đốc;
Trên cơ sở Bảng tông hợp Phiếu lấy ý kiến các Thành viên Hội đồng quản trị,
QUYẾT ĐỊNH:
Điều 1 Phê duyệt nội dung hợp đồng chuyển nhượng cổ phần Công ty cô phần
Cảng dịch vụ dầu khí tống hợp Phú Mỹ thuộc sở hữu của Tổng công ty cổ phân Dich
vụ Kỹ thuật Dầu khí Việt Nam như kèm theo
Điều 2 Tổng giám đốc chịu trách nhiệm chỉ đạo triển khai các thủ tục chuyển
nhượng theo đúng quy định của pháp luật hiện hành, Tổng công ty và điều lệ Công ty
cô phần Cảng dịch vụ dầu khí tổng hợp Phú Mỹ
Điều 3 Tông giám đốc, Chánh văn phòng, Trưởng các Ban Tổng công ty, Người
dai diện phần vốn của Tổng công ty tại Công ty cô phần Cảng dịch vụ dầu khí tổng
hợp Phú Mỹ chịu trách nhiệm thị hành Quyết định này
Trang 2
- Pursuant to the Civil Code of the Socialist Republic of Vietnam: and
- Pursuant to the function, capabilities and the Parties’ covenants to one another;
THIS AGREEMENT is made effective as of the day of 2011
Address | : Sth Floor, PetroVietnam Tower, 1-5 Le Duan st, District 1, Ho
Chi Minh City, Viet Nam
Tel No : (84.8) 39102828 Fax No.: (84.8) 39102929
Legal Representative : MR NGUYEN HUNG DUNG
Designation : GENERAL DIRECTOR
(Hereinafter to be referred to as the “SELLER”)
AND
Company Name : YINSON HOLDINGS BERHAD
Address > No 25, Jalan Firma 2, Kawasan Perindustrian Tebrau IV,
81100 Johor Bahru, Johor
1 (S&P - Phu My Port JSC)
Trang 3Legal Representative : MR LIM CHERN YUAN
Designation : EXECUTIVE DIRECTOR
(Hereinafter to be referred to as the “BUYER”)
(The SELLER and BUYER are at times to be referred to as each the “PARTY” and
collectively the “PARTIES”)
IN RESPECT OF
PTSC PHU MY PORT JOINT STOCK COMPANY [Company No.: 3501811766], a
company incorporated on [04/04/2011] in accordance with the Vietnam Laws with a
Charter Capital of Three Hundred Fifty Billion Vietnam Dong (350.000.000.000
VND) divided into Thirty Five Million (35.000.000) Shares and having a registered
address at Phu My I1 Industrial Zone, Tan Thanh District, Ba RiaVung Tau, Vietnam
(hereinafter to be referred as the “COMPANY”)
RECITALS
(1) The PARTIES are vested with full power, authority and legal right to enter into
and engage in the transactions contemplated under this Contract and to exercise their
rights and perform their obligations hereunder and all corporate and other action: (i)
approving the terms of, and the obligations assumed by, and confirming agreement to
enter into this Contract, and (ii) specifying the individuals required to authorize the
execution and performance of this Contract and the performance of obligations
hereunder created
(2) The expressed obligations to be assumed by the PARTIES in this Contract are
legal and valid obligations binding on them in accordance with the terms and
conditions hereof
(3) |The PARTIES have ail the requisite business licenses, permits, registration,
power and authority (where applicable and necessary) to conduct its business as
presently conducted and to execute, deliver and perform its obligations under this
Contract
WHEREAS, the above named SELLER and BUYER hereby agree to the terms and
conditions set forth in this Contractwhich governs the PARTIES’ dealings and
relationship with one another such as follows:
2 (S&P - Phu My Port JSC)
Vig we
ÔN!
Trang 4DEFINITION & INTERPRETATION
In this Contract, unless the context otherwise requires, the expressions under this
Contract shall be defined and interpretedas have the meanings set out in Annexure A
herein
ARTICLE 1; THE SALE SHARES The SELLER has irrevocably agreed to sell and the BUYER has agreed to purchase
Forty Percent (40%) of issued and fully paid-up shares amounting to Fourteen
Million (14.000.000) Shares in the COMPANY held under legally valid share
certificateshereto together with all currently attached and hereafter to-be acquired
rights, title, and interests (hereinafter to be referred to as the “Sale Shares”) for the
total consideration of 182.000.000.000 Vietnam Dong (One Hundred Eighty Two
BillionVND) at Thirteen Thousand Vietnam Dong (13.000 VND) per share to be paid
in accordance with ARTICLE 2(hereinafter to be referred to as the “Consideration” or
“Purchase Price”) hereto free from all liens, charges, equities, and Encumbrances
subject to all implied and express terms and conditions herein contained and the
BUYER becomes the Shareholder of the COMPANY with all legal rights and benefit as
provided by the Vietnamese laws and the Charter
ARTICLE 2: PAYMENT OF THE PURCHASE PRICE
i The Purchase Price shall be paid by the BUYER either in the currency of
USD(the exchange rate is to be fixed in accordance with the prevailing average
buying and selling rate of VietcomBank at the date of signing of this Contract)
or in the currency of VND in the following manner: -
a) First Milestone Payment : Within Fifteen (15) Calendar days from the date
of signing of this Contract, the BUYER shall pay One Million United States
Dollar (1.000.000 USD) or in VND (equivalent) to the SELLER;
b) Second Milestone Payment: Within Thirty (30) Calendar days from date of
signing of this Contract, the BUYER shall pay One Million United States
Dollar (1.000.000 USD) or in VND (equivalent) to the SELLER;
c) Third Milestone Payment: Within Ninety (90) Calendar days from the date
of signing of this Contract, the BUYER shall pay the rest of the balance
Trang 5iii
IV
ii
The release of the Third Milestone Payment by the BUYER to the SELLER is
subject to a condition precedent which is only upon the execution of the
confirmation notice to transfer the Sale Shares in favour of the BUYER and the
delivery of the Transfer Documents to the BUYER in accordance with ARTICLE
3.ii herein
The SELLER hereby undertakes that immediately upon the Confirmation of
Transfer, the SELLER shall in its best endeavor, do all the necessary to proceed
with the completion of the transfer in accordance with ARTICLE 3 herein
Failure of which shall be considered a fundamental breach of this Contract on
the SELLER’s part
The BUYER shall pay the Milestone Payments from a Capital Bank Account
which is to be set up by the BUYER in Vietnam in accordance with the
Vietnamese Laws
The BUYER shall fax or email the documentary evidences of the Milestone
Payments to the SELLER
Subject to ii herein, failure on the part of the BUYER to fulfill the full
Purchase Price in accordance with the period of payment herein, the SELLER
shail be entitled to impose on the outstanding balance an interest at the rate
of Twelve Percent (12%) Per Annum to be calculated on daily basis from the
date of expiry of the Third Milestone Payment in the event the SELLER opts not
to exercise its right to terminate this Contract under ARTICLE 8
ARTICLE 3: TRANSFER OF SALE SHARES Subject to the provisions under this Contract, the SELLER shall at its own cost
and expense immediately affect the transfer of the Sale Shares or cause the
Sale Shares to be transferred to the BUYER or its nominee and/or permitted
assigns as the BUYER shall in their absolute discretion deem fit (hereinafter to
be referred to as the “Transfer”)
The period for the confirmation notice to be signed by each party shall not
exceed Seven (7) Calendar Days from the date of the document receipt
The SELLER shall forward the following documents to the BUYER upon signing of
the confirmation notice to transfer: -
a) The duplicate copy of this Contract duly executed by the PARTIES;
b) | The duplicate copy of the official confirmation notice that has been
signed by both PARTIES duly executed and issued by the COMPANY;
4 (S&P - Phu My Port JSC) if
Trang 6iii
iv
Vi
Vii
(Hereinafter to be referred as “Transfer Documents” collectively)
The SELLER hereby warrants and represents that the said Transfer shall be considered to be confirmed, valid and enforceable under the Vietnamese Law upon the execution of the PARTIES and COMPANY of the above mentioned confirmation notice
The insertion of the BUYER in the Shareholders’ Book of the COMPANY shall
only be effected upon the SELLER’s receipt of the full Purchase Price in
accordance with ARTICLE 2 herein The original copies of the confirmation notice, the Shareholders’ Book and documentary evidence of the SELLER’s notification to the Relevant/ Competent Authority in respect of the Transfer shall be immediately forwarded to the BUYER upon the SELLER’s receipt of the full Purchase Price in accordance with ARTICLE 2 herein
Failure to comply with this Clause, the SELLER is in breach of this Contract The Company hereby warrants and represents to the BUYER whereby the submission of any documentsin respect of the said Transfer to the Relevant/ Competent Authority is for the sole purpose of notification of the said Transfer only The submission shall not to be considered as an act of the PARTIES in seeking the approval or consent of the Relevant/ Competent Authority of the said Transfer
The SELLER hereby warrants and represents to the BUYER whereby there is no known legal or corporate restriction on the part of the SELLER or COMPANY in
effecting the said Transfer For the avoidance of doubt, the said Transfer of
the Sale Shares from the SELLER to the BUYER and the enforceability as well as the validity of this Contract is not subject to any approval or consent of any
In the event if the Purchase Price has been fully paid by the BUYER in accordance with ARTICLE 2 herein BUT the SELLER has not completed the
Transfer in accordance with this ARTICLE, the BUYER shall be entitled to impose on the SELLER an interest at the rate of Twelve Percent (12%) Per
Annum to be calculated on daily basis from the date the full payment of the Purchase Price is paid to the SELLER until the Completion of Transfer in the event the BUYER opts not to exercise its right to terminate this Contract under ARTICLE 8 |
In this Contract, the expression of “Completion of Transfer” shall mean the date of notification of the said Transfer with the Relevant/Competent
Authority in accordance with the Vietnamese Laws
5 (S&P - Phu My Port JSC)
Trang 7ARTICLE 4: CONTRACT COMPLETION DATE
Upon the Completion of Transfer of the Sale Shares to the BUYER in accordance with
ARTICLE 3 and full payment of the Purchase Price by the BUYER in accordance with
ARTICLE 2 herein, this Contract is deemed to be completed (hereinafter to be
referred to as the “Contract Completion Date”)
ARTICLE 5: BOM
i The BOM is the highest management body of the COMPANY and has the
corporate management powers in the name of the COMPANY, and power to
decide all matters (save for matters subject to the decision of the GSM) for the
objectives and interests of COMPANY
ii Whereby the BOM consists of Five (5) members, of which:
1 The SELLER has the right to nominate Three (3) members; and
2 The BUYER or its nominee and/ or permitted assigns and/ or lawful
successors has the right to nominate Two (2) members
ARTICLE 6: SELLER’S WARRANTY AND UNDERTAKING
i The SELLER hereby warrants and undertakes to the BUYER that:
a) it shall do all such things necessary to cause the Transfer of the Sale
Shares (fully paid up and unencumbered) to the BUYER in accordance with
ARTICLE 3 of this Contract;
b) it has the power and authority required to enter into this Contract and
perform fully its obligations under this Contract in accordance with its
terms and conditions;
c) this Contract is legal, valid and binding on it and is enforceable in
accordance with its terms and conditions;
d) it has not, prior to the date of this Contract, allowed to be disposed of or
encumbered any of its shares or any of its assets;
e) that all monies, financial records, reports and billings in respect of
COMPANY, prepared, maintained or submitted by it or any of its
representatives, reflect properly and accurately the facts regarding all
activities and transactions that are the subject thereof, at the time
thereof;
6 (S&P - Phu My Port JSC)
Trang 8f) the entry into and conclusion of this Contract will not result in:
e a violation or breach of any provision of its statutes, Charter or other
constitutional documents;
° a violation or breach of any applicable laws or regulations or of any
order, decree or judgment of any court, governmental agency or regulatory authority,
g) no registration, recording, filing or notarization of this Contract, and no
other action whatsoever, is necessary or desirable to be taken, unless
otherwise provided by the applicable laws, to ensure the validity,
enforceability or priority of the liabilities and obligations of it, or the
rights as against it of any of the other PARTY or PARTIES;
h) since the incorporation of the COMPANY is due to the conversion from the
State-owned company formerly known as branch of PTSC Phu My Port
(“PTSC Branch”), all assets (including titles, equipment, contracts and
etc.) beneficially own by the said PTSC Branch as shown in _ its
latestBalance Sheet (“Assets”) will be immediately transferred/ assigned
to the COMPANY The transfer/ assignment of ail assets to the newly
incorporated COMPANY shall be at the cost and expense of the SELLER as
this particular obligation is deemed to be a “should do” obligation on the
part of the SELLER
In particular, with regards to the Land Lease Agreement entered into in Vung
Tau dated July 2003 between “CONG TY XAY DUNG & PHAT TRIEN DO THI TINH BA RIA
- VUNG TAU (UDEC)” and “CONG TY DICH VU KY THUAT DAU KHI (PTSC)” in respect of
a piece of a land known as Industrial Zone, Phu My 1, Ba Ria - Vung Tau), the title to
the beneficial ownership, ail interests and benefits under the said Land Lease
Agreement shall be transferred/ assigned to the COMPANY at the cost and expense of
the SELLER (“Land Lease Agreement”)
The SELLER hereby undertakes to the BUYER that the transfer/ assignment of
all the aforesaid assets and the abovementioned Land Lease Agreement (land-use
right) to the COMPANY will be completed within Two (2) Years from the date of
signing this Contract and the SELLER shall be responsible for any legal issues of the
Land Lease Agreement in respect of the land-use right until the completion of the
transfer/assignment Failure to comply with this undertaking shall be a fundamental
breach of this Contract
7 (S&P - Phu My Port JSC)
Trang 9iff
ii
The SELLER undertakes that it will at all times act in good faith in all affairs
with the BUYER and shall not engage the COMPANY in or commit the COMPANY
to any dealings which may have an adverse or substantial effect on the
financial position of the COMPANY without taking into consideration the
interests and disagreement of the BUYER as a major shareholder in the
COMPANY
It is expressly understood that the BUYER has relied on the warranties and
undertakingsprovided by the SELLER in entering this Contract The PARTIES
agree that the remedy in respect of any breach of this warranties and
undertakings shall be a claim for damages (actual damage need not be proven)
and to enforce any rights in the event if the BUYERopts not to exercise its right
to terminate this Contract under ARTICLE 8
The SELLER shall indemnify and save the BUYER harmless against any and all
reasonable costs, expenses (including reasonable tegal fees and costs), losses,
damages, and liabilities incurred or suffered, directly or indirectly, by the
SELLER, resulting from, or attributable to, a material breach of, or
misstatement by, it in any one or more of the warranties or undertakings made
in or pursuant to this Contract
ARTICLE 7: DISPOSAL OF SHARES BY THE SELLER The SELLER hereby warrants and undertakes whereby the disposal of any of its
Fifty One Percent (51%) Shares held by it in the COMPANY (“Offered Shares”)
are subject to the “first right of refusal” of the BUYER This right of the BUYER
herein will only arise if and when the SELLER decides to dispose of its Shares in
the COMPANY
“first right of refusal” shall mean:
The SELLER shall inform its intention to dispose of the Offered Shares to the
BUYER in writing and negotiate with the BUYER by convening informal meetings
when necessary (“Letter of Intention”)
The BUYER will have Fourteen (14) Calendar Days from the date of the Letter
of Intentionto make an offer in writing to the SELLER (“Letter of Offer”) to
state the proposed price and terms for the Offered Shares In the event if the
BUYER does not issue a Letter of Offer or if the Parties are unable to reach to
a final agreement for the price and terms of the Offered Shares, the SELLER
shall be able to dispose of the Offered Shares to any third party in accordance
with the provisions of the Charter and the price and terms when offer to such
third party shall not be respectively less than the price and more favorable
than the terms proposed by the BUYER in the Letter of Offer or the price and
terms offered by the BUYER subsequently in any meeting of the Parties
8 (S&P - Phu My Port JSC)
VIỆT NAI
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Trang 10iti
ii
This ARTICLE also applied for the BUYER if they want to dispose its part of full
40% Shares in the COMPANY in which event, the SELLER shall be entitled to the
first right of refusal
ARTICLE 8: DEFAULT AND TERMINATION
At any time and without prejudice to any other rights and remedies of the
PARTIES, each PARTY may at its absolute discretion by service of a notice on
the other PARTY to terminate this Contract in the event if:
any statutory provision or regulation under the Vietnam Laws prohibits,
_restricts or imposes adverse conditions upon the dealings of the Sale Shares
which is beyond the knowledge, contemplation and control of the SELLER;
unilateral termination after the signing of this Contract by any of the
PARTIES without any legal justification;
any of the PARTIES breaches any provisions under this Contract;
prior to the Contract Completion Date, a PARTY, being a company, and/or
the COMPANY enters into liquidation, whether compulsory or voluntary, the
other PARTYmay annul the sale and purchase of the Sale Shares and
forthwith rescind this Contract
Upon such termination in accordance with the provisions hereunder:
a the SELLER is to refund to the BUYER all monies paid in accordance with
the provisions under this Contract free of interest within Two (2) Banking
Days from the date of the SELLER’s receipt of the termination notice;
Notwithstanding, in the event if the termination is due to the fault of the
SELLER by virtue of the above said i.b., i.c and i.d, the BUYER shall be
entitled to:-
i) a compensation ofTen Percent (10%) out of the Purchase Price; and
ii) impose on the SELLER an interest at the rate of Twelve Percent (12%)
Per Annum on any monies paid to be calculated on daily basis from the
date the monies were paid in accordance with the provisions of this
Contract;
9 (S&P - Phu My Port JSC)
Trang 11in addition to the above mentioned refund of any monies paid and any
other remedies that may be available to the BUYER in law and equity
Notwithstanding, in the event if the termination is due to the fault of the
BUYER by virtue of the above said i.b and i.c, the SELLER shall be entitled
to a compensation of Ten Percent (10%) out of the Purchase Price in
addition to any other remedies that may be available to the SELLER in law
and equity
b the BUYER shall at its own cost and expense re-transfer to the SELLER the
Sale Shares if the same have been transferred to the BUYER
Notwithstanding, in the event if the termination is due to the above said i.b, i.c
and i.d,any cost and expense to be incurred by the BUYER for such re-transfer shall be
reimbursed by the SELLER
ARTICLE 9: NON-COMPLETION OF TRANSFER
i In the event if the Transfer is not/ cannot be completed for any reason
whatsoever in accordance with ARTICLE 3, save and except where there is any
default, willful neglect, omission or blameworthy conduct on the part of any of
the PARTIES, each PARTY shall use its best endeavors: -
a) To ascertain the cause or reason for such non-acceptance or rejection or
non-registration, as the case may be;
b) To rectify, remedy and/or overcome such cause or reason; and
c} To cause the Transfer to be accepted for registration and/or registered,
and in the event that such cause or reason cannot be or is not rectified,
remedied and/or overcome within a period of Sixty (60) Days from the date of such
non-completion is made known to the BUYER, this Contract shall not be proceeded
with and the BUYER shall be entitled for the refund of the Purchase Price or any part
of it (if the same has been paid to the SELLER) without interest in the form of debt
due and owing by the SELLER to the BUYER and/or its nominee(s) whereupon this
Contract shall be terminated and cease to be of any further effect but without
prejudice to any right or claim which either PARTY may be entitled to against the
other PARTY in respect of any antecedent breach of this Contract In the event that
the non-completion of the Transfer is due to the default, willful neglect, omission or
blameworthy conduct of the SELLER which inevitably leads to the termination of this
Contract, the BUYER shall have the right to seek the remedy under ARTICLE 8.ii.a
herein uncontested by the SELLER
10 (S&P - Phu My Port JSC)