Xem mẫu
- Revised JV contract
DATED _____, ___
JOINT VENTURE CONTRACT
between
A COMPANY
and
B COMPANY
- TABLE OF CONTENT
CHAPTER I - GENERAL..................................................................................................4
ARTICLE 1: DEFINITIONS..........................................................................5
ARTICLE 2: AGREEMENT TO CONVERSION OF THE COMPANY.................6
ARTICLE 3: NAME AND ADDRESS OF THE COMPANY...............................6
ARTICLE 4: LIMITED LIABILITY AND JURIDICAL STATUS OF THE COMPANY
................................................................................................................6
ARTICLE 5: CHARTER ..............................................................................7
ARTICLE 6: EFFECTIVE DATE...................................................................7
CHAPTER II - OBJECTIVES AND SCOPE OF ACTIVITY OF THE COMPANY. 7
ARTICLE 7: OBJECTIVES AND SCOPE OF BUSINESS OF THE COMPANY. . .7
ARTICLE 8: PROJECT IMPLEMENTATION SCHEDULE................................7
CHAPTER III - CAPITAL OF THE COMPANY...........................................................8
ARTICLE 9: CAPITAL OF THE COMPANY ..................................................8
ARTICLE 10: REDUCTION, INCREASE OF THE CHARTER CAPITAL ...........8
ARTICLE 11: ASSIGNMENT OF SHARES ...................................................9
CHAPTER IV - RESPONSIBILITIES OF EACH PARTY...........................................9
ARTICLE 12: RIGHTS AND OBLIGATIONS OF THE COMPANY ...................9
ARTICLE 13: RESPONSIBILITIES OF THE PARTIES....................................9
ARTICLE 14: WARRANTS AND REPRESENTATIONS OF THE PARTIES ....11
CHAPTER V - FINANCE OF THE COMPANY..........................................................11
ARTICLE 15: FINANCIAL OBLIGATIONS..................................................11
ARTICLE 16: DIVISION OF PROFITS .......................................................11
ARTICLE 17: TAX OBLIGATIONS.............................................................11
ARTICLE 18: FOREIGN EXCHANGE ........................................................12
ARTICLE 19: BANK ACCOUNT................................................................12
ARTICLE 20: INSURANCE ......................................................................12
CHAPTER VI - ACCOUNTING AND STATISTICS...................................................12
ARTICLE 21: ACCOUNTING AND STATISTICS.........................................12
ARTICLE 22: AUDIT ...............................................................................13
ARTICLE 23: FISCAL YEAR .....................................................................13
CHAPTER VII - MEMBERS’ COUNCIL, MANAGEMENT AND STAFF..............13
ARTICLE 24: MEMBERS’ COUNCIL..........................................................13
ARTICLE 25: MANAGEMENT OFFICE ......................................................14
ARTICLE 26: RECRUITMENT OF PERSONNEL.........................................15
CHAPTER VIII - DISSOLUTION, LIQUIDATION OF THE COMPANY, AND
TERMINATION OF THE JV CONTRACT..................................................................15
ARTICLE 27: DISSOLUTION OF THE COMPANY ......................................15
ACTICLE 28: LIQUIDATION OF THE COMPANY.......................................15
ARTICLE 29: TERMINATION OF THE JV CONTRACT................................15
CHAPTER IX - OTHER PROVISIONS........................................................................16
ARTICLE 30: CLAIMS FOR DAMAGES ....................................................16
ARTICLE 31: SETTLEMENT OF DISPUTES...............................................16
ARTICLE 32: FORCE MAJEURE................................................................17
ARTICLE 33: CONFIDENTIALITY..............................................................17
Joint Venture Contract. Page 2
- ARTICLE 34: CIRCUMSTANCES NOT STIPULATED IN THE JV CONTRACT
AND IN THE CHARTER...........................................................................17
ARTICLE 35: NO WAIVER.......................................................................18
ARTICLE 36: LANGUAGE OF THE JV CONTRACT.....................................18
ARTICLE 37: AMENDMENTS AND MODIFICATIONS OF THE JV CONTRACT
..............................................................................................................18
ARTICLE 38: GOVERNING LAWS............................................................18
ARTICLE 39: SEVERABILITY....................................................................18
ARTICLE 40: NOTICES............................................................................19
.............................................................................................................19
ARTICLE 41: HEADINGS.........................................................................19
ARTICLE 42: SIGNING ..........................................................................19
Joint Venture Contract. Page 3
- JOINT VENTURE CONTRACT
BASED ON:
1) Law on Investment, passed by National Assembly of Vietnam on 29 November
2005;
2) Decree No. 108/2006/ND-CP dated 22 September 2006 guiding a number of articles
of Law on Investment;
3) Other relevant laws and regulations.
This Joint Venture Contract is made and signed on this day of 30 March 2007 in Vietnam
by and between the following Parties:
A. THE VIETNAMESE PARTY
Company Name: A Company
Head Office: [____]
Telephone: [____]
Authorized Representative: [____]
Title: [____]
Nationality: [____]
ID No.: [____].
(Hereinafter referred to as the “Vietnamese Party”)
B. THE FOREIGN PARTY
Company Name: B Company
Head Office: [____]
Telephone: [____]
Facsimile: [____]
E-mail: [____]
Authorised Representative: [____]
Title: [____]
Nationality: [____]
Passport No.: [____]
(Hereinafter referred to as the “Foreign Party”).
The Parties hereto have mutually agreed to sign this Joint Venture Contract (Hereinafter
referred to as the “JV Contract”) with the terms and conditions hereunder set forth:
CHAPTER I - GENERAL
Joint Venture Contract. Page 4
- ARTICLE 1: DEFINITIONS
In this JV Contract, the following words and terms shall have the meanings as ascribed to
them hereinafter:
1.1 ''Members’ Council” shall mean the Members’ Council of Company as defined in
Article 24 hereinafter.
1.2 “Charter” shall mean the charter of Company to be executed by the Vietnamese
Party and the Foreign Party in accordance with this JV Contract.
1.3 ''Dong” shall mean the lawful currency of Vietnam.
1.4 “Feasibility Study” means the written analysis of the feasibility of the Project
prepared by the Parties and attached to the Investment License Application.
1.5 “Foreign Party” shall mean B Company.
“Vietnamese Party” shall mean A Company.
1.6 “Parties” shall mean the Vietnamese Party and the Foreign Party collectively; and
“Party” shall mean either of the Vietnamese Party or the Foreign Party, as the
context requires.
1.7 “Investment Licence” shall mean the investment license issued by the Licensing
Authority or a competent authority in Vietnam for the establishment and the
operation of Company.
1.8 “Investment Certificate” shall mean the investment certificate issued by the
Certificate Issuing Authority for approval on the re-registration of the Company.
1.9 “JV Contract” shall mean this Joint Venture Contract concluded by the Parties for
the purpose of establishing Company and all annexes, agreements, schedules and
documents attached hereto.
1.10 “Laws of Vietnam” shall mean relevant laws, regulations and any other legal
writings of the Socialist Republic of Vietnam as amended or re-enacted from time
to time.
1.11 “Licensing Authority” shall mean Hanoi People’s Committee and/ or a competent
authority of Vietnam, which is responsible for the approval and issuance of the
Investment License within its authority under the Laws of Vietnam.
1.12 “Certificate Issuing Authority” shall mean Department of Investment and
Planning or any competent authority of Vietnam, which is responsible for issuance
of the Investment Certificate within its authority under the Laws of Vietnam.
1.13 “Project” shall mean the project on “production, manipulation, processing and sale
of high quality fashion jewellery” which are jointly carried out by the Parties.
Joint Venture Contract. Page 5
- 1.14 “Total Investment Capital” shall mean the capital to be employed by Company for
implementation of the Project, comprising of its fixed and working capital,
including loans necessary for its operations.
1.15 “Loan Capital” shall mean the loan capital specified in Article 9 hereof.
1.16 “Charter Capital” shall mean the charter capital specified in Article 9 hereof.
1.17 ''USD'' shall mean the lawful currency of the United States.
1.18 “Vietnam” shall mean the Socialist Republic of Vietnam.
ARTICLE 2: AGREEMENT TO CONVERSION OF THE COMPANY
The Parties, in accordance with the applicable laws, hereby agree to re-register the existing
joint venture company. Accordingly, the Company shall be conversed into a limited
liability company having two members or more.
ARTICLE 3: NAME AND ADDRESS OF THE COMPANY
3.1 The name of Company in Vietnamese is “X Company”.
The name of Company in English is “X Company”.
The transaction name of Company is “X”.
3.2 The legal address of Company’s office and workshop will be at _____.
3.3 The Company shall be entitled to open branch(s) and/ or representative office(s) in
the provinces and cities in Vietnam, subject to the considerations of Company,
with the approval of the Members’ Council, the Certificate Issuing Authority or
other competent authorities of Vietnam under the laws.
3.4 The Company may, upon the decision of the Members’ Council, change its head
office or any branch office and establish branch offices or other places of business
in Vietnam or elsewhere.
ARTICLE 4: LIMITED LIABILITY AND JURIDICAL STATUS OF THE
COMPANY
4.1 The Company is a limited liability company having the juridical person status,
under the Laws of Vietnam with the effect from the date of the Investment
Certificate. During the course of its operation, Company shall observe with the
Laws of Vietnam, the provisions of the JV Contract, the Charter and the
Investment Certificate. All activities of Company and the respective interests of the
Parties shall be protected by the Laws of Vietnam.
4.2 The Parties shall not be liable for any debts or obligations of Company except:
Joint Venture Contract. Page 6
- a) Only up to the amount of its respective subscribed contributions in the Charter
Capital of Company as required from time to time in accordance with this
JV Contract and shall have no liability to Company or to any third party; or
b) For any other debts or obligations as are expressly assumed by the Parties
under this JV Contract.
4.3 Subject to the foregoing limitation of liabilities, the Parties shall share the profits,
losses and risks in the ratio of Foreign Party is ___percent (__%) and Vietnamese
Party is ____ percent (__%).
ARTICLE 5: CHARTER
The Company has its Charter in order to enable its legal conduct of operation. If any
discrepancy is found between this JV Contract and the Charter, then the provisions in this
JV Contract shall prevail and the Parties shall take all appropriate actions to have the
Charter amended so that it is consistent with this JV Contract. If mandatory law or
regulation prohibits amendment of the Charter, the Parties agree that the Charter shall to
the greatest extent possible and permitted by law be construed in accordance with the JV
Contract and the Parties’ intentions, alternatively the Parties shall take all appropriate
actions to reach an alternative solution, which is in accordance with the JV Contract and
the Parties’ intentions.
ARTICLE 6: EFFECTIVE DATE
6.1 This JV Contract shall become effective upon the date of execution as first written
above and replace all and any previous documents on the same subject issue.
6.1 This JV Contract shall remain in force and effect until the expiration of the project
term or earlier termination thereof by the Parties in accordance with the terms and
conditions hereof and the laws of Vietnam.
CHAPTER II - OBJECTIVES AND SCOPE OF ACTIVITY OF THE COMPANY
ARTICLE 7: OBJECTIVES AND SCOPE OF BUSINESS OF THE COMPANY
7.1 The Parties agree to establish Company for a profitable business, strengthening of
market position and improvement of competitiveness. The objectives and scope of
business of Company are _____.
7.2 The objectives and scope as set out in Article 7.1 are subject to the terms and
conditions of this JV Contract and the Charter.
ARTICLE 8: PROJECT IMPLEMENTATION SCHEDULE
8.1 The Parties shall unanimously agree to apply to the Certificate Issuing Authority for
the term of ____ years for the project commencing from date of the Investment
Licence. This term can be extended in the future, subject to the agreement of the
Parties and the approval of Certificate Issuing Authority.
Joint Venture Contract. Page 7
- 8.2 The concrete Project implementation schedule shall be prepared and agreed upon by
the Parties, and implemented in a prompt and appropriate manner to serve
Company’s benefits and purposes in accordance with this JV Contract and the
Charter.
CHAPTER III - CAPITAL OF THE COMPANY
ARTICLE 9: CAPITAL OF THE COMPANY
9.1 Total Investment Capital
The Total Investment Capital of the Project shall be USD ____ (_____US Dollars).
9.2 Charter Capital of Company
The Charter Capital of Company shall be USD ____ (_____US Dollars).
9.3 Contributions of the Parties
Foreign party shall contribute USD ____ (____ US Dollars) which is equal to ____
percent (__%) of the Charter Capital in the form of cash, machinery and
equipment.
Vietnamese party shall contribute USD ____ (____ US Dollars) which is equal to
____ percent (__%) of the Charter Capital in the form of cash, machinery and
equipment.
9.4 Loan Capital
During process of activities, the Company may be obtain loans, borrowings or
other means of financing from the Parties, bank or other credit or financial
institutions in Vietnam or abroad, in compliance with the procedures as required
by the Laws of Vietnam, as contribution to the Total Investment Capital to meet
operational demands of Company.
ARTICLE 10: REDUCTION, INCREASE OF THE CHARTER CAPITAL
10.1 During the process of its operation, Company shall not be entitled to reduce the
amount of its Charter Capital. Any increase in the Charter Capital of Company
shall require the unanimous approval of the Members’ Council and shall be
submitted to the Certificate Issuing Authority for approval.
10.2 In case where it is necessary to increase the Charter Capital of the Company, the
Members’ Council shall consider increasing the Charter Capital by reinvestment of
the earned profits of Company or by calling for new capital contribution from the
Parties or by calling a third party to joint into the Company. Any increase charter
capital must be subject to the unanimous consent of the Members’ Council and
approval of the Certificate Issuing Authority.
Joint Venture Contract. Page 8
- ARTICLE 11: ASSIGNMENT OF SHARES
11.1 Notwithstanding the provisions of this Agreement, both Parties undertake that the
Vietnamese Party shall transfer all its remaining capital contributed in Company
to the Foreign Party within ___ years from the date of this Agreement without any
payment of the Foreign Party and arrange for all execution of relevant documents
to fulfill the requirement of laws on this assignment.
11.2 No Party shall pledge or mortgage any of its capital contributed in Company, nor
otherwise use such capital as collateral or for any other purpose.
CHAPTER IV - RESPONSIBILITIES OF EACH PARTY
ARTICLE 12: RIGHTS AND OBLIGATIONS OF THE COMPANY
The Company shall have the rights, obligations set out in the Investment Certificate and
any amendment thereof, or in any other license granted or to be granted to Company by
the Certificate Issuing Authority or any other competent authority in Vietnam, and in
accordance with the Laws of Vietnam.
ARTICLE 13: RESPONSIBILITIES OF THE PARTIES
Each Party shall fulfill its obligations and abide by the terms of this JV Contract and the
Charter of Company, and shall carry out its respective responsibilities as below:
13.1 Responsibilities of the Vietnamese Party
a) To negotiate with local authorities regarding essential juridical aspects and
of official approvals of Company from any competent authorities in
Vietnam;
b) To provide fully and in a timely manner its Charter Capital Contribution for
Company as set forth in this JV Contract;
c) To take care of all local arrangements that relating to operation of
Company, and to support Company in dealing with the relevant
Government agencies on issues and formalities relating to the operation of
Company;
d) To assist Company to obtain all necessary permissions, including, without
limitation, all entry permits, visas, working permits and travel permits for
all expatriate personnel working for Company, comprising a part of
Company’s management or performing services for Company;
e) To introduce and assist Company in selecting and recruiting the qualified
Vietnamese staffs for working for in Company;
Joint Venture Contract. Page 9
- f) To appoint the representatives to the Members’ Council, and assist the
Members’ Council in management and operation of Company;
g) To provide necessary information on the demand for and availability of
products in the local market and recommend measures for achieving
effectiveness of the business operation of Company;
h) To observe strictly the confidentiality provisions as stated in Article 33 of
this JV Contract;
i) To take whatever steps and measures as may be necessary to assist the
Foreign Party to repatriate its shared profits from Company in accordance
with the terms and conditions of this JV Contract;
j) To assist solving other problems when reasonably requested by Company.
13.2 Responsibilities of the Foreign Party
a) To provide the Vietnamese Party with all necessary documents as required
by the Laws of Vietnam in order to complete the application for the
Investment Certificate;
b) To provide fully and in a timely manner its Charter Capital Contribution for
Company as set forth in this JV Contract;
c) To assist Company in setting up and implementing a quality assurance
system at the expenses of Company;
d) To organize the training and skill transfer program for the selected
Vietnamese staff at the expenses of Company and under the terms and
conditions to be agreed with Company;
e) To assist Company in marketing Company’s business activities;
f) To assist Company in sourcing, selecting, supplying and approving all raw
materials that cannot be sourced locally. To assist in selecting and
approving the local raw materials to be used for manufacture of the
Products;
g) To provide all the adequate and necessary assistance, advice expertise and
information related to the development and management of Company;
h) To appoint the representatives to the Members’ Council, and assist the
Members’ Council in management and operation of Company;
i) To assist solving other problems when reasonably requested by Company.
Joint Venture Contract. Page 10
- ARTICLE 14: WARRANTS AND REPRESENTATIONS OF THE PARTIES
14.1 As of the date of the execution of this JV Contract, each of the Parties represents
and warrants to the other that:
a) it is a juridical person duly organized or established, validly existing and in
good standing under the law of the jurisdiction of its organization;
b) it has the authority to enter into this JV Contract and to carry out the
business as contemplated herein; and
c) this JV Contract, when executed by such Party and following the issuance
of the Investment Certificate, is binding and enforceable against it.
14.2 Without prejudice to Article 32 of this JV Contract, either Party shall indemnify
the other Party against any and all losses, including inter alia any related interest,
penalties and reasonable legal counsel fees that may arise in the event that any of
the foregoing representations and warranties is incorrect or inaccurate.
CHAPTER V - FINANCE OF THE COMPANY
ARTICLE 15: FINANCIAL OBLIGATIONS
The Company shall fulfill all financial obligations to the Government of Vietnam in
accordance with the Laws of Vietnam.
ARTICLE 16: DIVISION OF PROFITS
16.1 In accordance with the ratio of the Charter Capital contribution of the Parties as
stated herein above, the remaining profits of Company shall be allocated according
to the decisions of the Members’ Council.
16.2 If the proportion of the contributions of the Parties to the Charter Capital changes,
the rate of the remaining profits of Company allocated to the Parties shall be
accordingly changed.
ARTICLE 17: TAX OBLIGATIONS
17.1 The Company shall apply for all tax exemptions and reductions to which it is
entitled according to the Laws of Vietnam.
17.2 The Company and the Parties shall be liable to pay the value added tax, corporate
income tax and perform other financial obligations (if any) in accordance with the
Laws of Vietnam, and in particular in accordance with the Certificate of
Investment granted by the Certificate Issuing Authority.
17.3 In case there are some changes in the taxation regarding the enterprises with
foreign invested capital, then such taxation rules shall be applied to Company.
Joint Venture Contract. Page 11
- ARTICLE 18: FOREIGN EXCHANGE
18.1 Vietnamese currency shall be used for payment of all raw materials, equipment,
machinery purchased in Vietnamese market, pay for electricity, water as well as
wages to Company Vietnamese staff and workers.
18.2 Foreign currency, e.g. US Dollars, shall be used to make all purchases outside of
Vietnam and to pay wages to Company foreign staffs and workers in accordance
with the laws of Vietnam.
18.3 Foreign exchange available to Company shall be used in the following order of
priority:
a) Payment for the procurement overseas and import of all raw materials,
equipment, spare parts and other materials for Company’s operation;
b) Payment of expatriate personnel’s salary;
c) Payment of the net shared profits of the Foreign Party as provided herein
above; and
d) Other payments, which the Members’ Council decides to be made in
foreign currency, unless otherwise regulated by the Laws of Vietnam.
18.4 The Foreign Party shall be permitted to transfer abroad, in foreign currency, all its
shared profits and other legal incomes, after having completed payment of
applicable taxes, in accordance with the Laws of Vietnam.
ARTICLE 19: BANK ACCOUNT
The Company shall open its interest-bearing accounts in both Vietnamese and foreign
currency at a Vietnamese bank or a joint venture bank or a branch of foreign bank
established in Vietnam as agreed upon by the Members’ Council in accordance with the
Laws of Vietnam. Upon approval and subject to conditions imposed by the State Bank of
Vietnam, Company may also open foreign exchange accounts with foreign bank abroad.
ARTICLE 20: INSURANCE
The assets of Company shall be insured at any insurance company, which is licensed to
operate in Vietnam. The Members’ Council shall decide on the coverage to be purchased
and the insurance premium to be paid in accordance with the Laws of Vietnam and
international practice.
CHAPTER VI - ACCOUNTING AND STATISTICS
ARTICLE 21: ACCOUNTING AND STATISTICS
Joint Venture Contract. Page 12
- 21.1 The accounting system, books and records of Company shall be prepared and
maintained in accordance with the prevailing Laws of Vietnam.
21.2 Financial statements including the balance sheet, profit and loss statement, cash
flow statement and reports on the operations of Company shall be prepared
monthly, quarterly and annually.
21.3 The monetary unit used in bookkeeping shall be in Vietnam Dong and US Dollars.
Conversion of one currency into another currency used for purchases as well as
accounting purposes shall be executed in accordance with the official exchange
rate published by the State Bank of Vietnam at the time of actual payment.
21.4 All accounting records, invoices, books, and statements of Company shall be
made, prepared and maintained in both the English and Vietnamese languages.
21.5 The depreciation rate of Company’s fixed assets shall be determined by the
Members’ Council in compliance with the Ministry of Finance's current
regulations with respect to depreciation rates.
ARTICLE 22: AUDIT
A registered auditing firm of international repute licensed or authorized to carry out audits
in Vietnam shall be engaged by Company as its auditor, to examine and verify the
financial receipts, expenditures and accounts, including the annual accounts, and shall
submit its report to the General Director and the Members’ Council. Such auditing firm
shall be selected and decided by the Members’ Council.
ARTICLE 23: FISCAL YEAR
23.1 The fiscal year of Company shall begin from January 1st of each calendar year and
end on December 31st of the same year.
23.2 At the end of each fiscal year, Company shall prepare financial statements in both
Vietnamese and English consisting of financial balance sheet, a profit and loss
statement and other financial statements. The financial statements shall be
examined and verified by a registered auditing company as stated in Article 22
above and shall be submitted to the Certificate Issuing Authority and other relevant
Vietnamese authorities as required by the Laws of Vietnam, within three (3)
months from the ending date of the fiscal year, and at the same time shall be sent to
the Parties.
CHAPTER VII - MEMBERS’ COUNCIL, MANAGEMENT AND STAFF
ARTICLE 24: MEMBERS’ COUNCIL
24.1 The highest authority of Company shall be the Members’ Council of Company.
The Members’ Council shall establish the long-term business plan, organization
structure, appoint or remove the Chief Accountant and control overall management
of the business of Company with the object of taking all reasonable and proper
Joint Venture Contract. Page 13
- steps to make as large profits as possible while at the same time maintaining the
value of the invested capital and sustaining the growth of Company.
Thus, the Members’ Council is the highest authority of Company for the overall
management of Company including finance and control, purchasing, and
production and commercialization of Company’s products. It decides on all issues
of Company, which is not solely related to the day-to-day business of Company.
The Parties agree that Company’s taking in new suppliers and new customers of
whichever nature as well as Company’s investments in plants, machinery and all
other fixed or intangible assets shall be decided by the Members’ Council.
24.2 The Parties shall appoint their authorised representatives to the Members’ Council
according to their respective Charter Capital contributions to Company.
24.3 In accordance with the ratio of the Charter Capital contribution stated above, the
Members’ Council of Company shall consist of 03 persons of which the
Vietnamese Party shall appoint 01 person and the Foreign Party shall appoint 02
persons. The appointment of the Member’s Representative by the Parties shall be
made by written notification from the Parties to Company.
24.4 The term of office of the Member’s Representatives, including that of the
Chairman and the Vice Chairman, shall be 3 years. The Chairman, the Vice
Chairman and each of the Member’s Representative, unless he dies, resigns,
retires, is incapacitated or is removed from office earlier, shall hold office for their
terms. Each of the Member’s Representative may be re-appointed for the next
terms.
24.5 The Members’ Council shall carry out its functions in accordance with the Charter
and the Laws of Vietnam. The rights and obligations of the Members’ Council
shall be specified in the Charter.
ARTICLE 25: MANAGEMENT OFFICE
25.1 The Company may establish a Management Office (“MO”) to take responsibility
for the day-to-day management of Company’s operation, if deem necessary. The
MO shall consist of a General Director, a Deputy General Director and a Chief
Accountant. The Members’ Council shall decide to appoint and/or dismiss the
General Director, the Deputy General Director and the Chief Accountant.
25.2 The Chairman, the Vice Chairman or a Member of the Members’ Council may
concurrently serve as the General Director or other management officers of
Company.
25.3 The General Director, the Deputy General Director and the Chief Accountant of
Company shall be appointed by the Members’ Council in the principle of
unanimity.
25.4 The General Director shall be the legal representative of Company.
Joint Venture Contract. Page 14
- 25.5 The General Director shall be required to discuss with the Deputy General Director
the execution of resolutions of the Members’ Council relating to important issues,
such as the organisational structure; appointment and removal of key personnel
and approval of the business plan. In the event that the General Director and the
Deputy General Director have different opinions, the opinion of the General
Director shall be conclusive. However the Deputy General Director may reserve
his or her opinion and raise it with the Members’ Council at its next meeting for
consideration and decision.
ARTICLE 26: RECRUITMENT OF PERSONNEL
26.1 All employees of Company shall be recruited and employed on the basis of labor
contracts and the collective labor agreement, in accordance with the Laws of
Vietnam and Company’s personnel regulations promulgated by the Members’
Council.
26.2 The Company shall apply social security and safe working environment for the
sake of its employees in compliance with the Laws of Vietnam.
CHAPTER VIII - DISSOLUTION, LIQUIDATION OF THE COMPANY, AND
TERMINATION OF THE JV CONTRACT
ARTICLE 27: DISSOLUTION OF THE COMPANY
Under the cases provided in the Charter and upon the decisions of the Members’ Council,
the JV Contract shall be terminated and Company shall be dissolved in the accordance
with the regulations and procedures set forth under the laws.
ACTICLE 28: LIQUIDATION OF THE COMPANY
28.1 The liquidation of Company shall be effected in accordance with the Charter.
28.2 After termination of all activities, the remaining assets of Company, having paid
all debts and liabilities as stipulated by the Laws of Vietnam, shall be distributed to
the Parties in accordance with the ratio of their contribution to the Charter Capital
at the time of dissolution.
ARTICLE 29: TERMINATION OF THE JV CONTRACT
29.1 This JV Contract shall be terminated after two years since the execution of this
Contract. Upon that time, A Company shall transfer the remaining Charter capital
to B Company without further consideration or requirement. At that time Parties
shall arrange the execution of necessary documents, under the law requirements, so
that the Company shall be conversed into a one-member limited liability company
under the applicable laws.
29.2 In case of any early termination of the JV Contract before the above mention term,
Parties undertake to arrange for the execution of necessary documents, under the
law requirement, so that parties can liquidate the Company.
Joint Venture Contract. Page 15
- CHAPTER IX - OTHER PROVISIONS
ARTICLE 30: CLAIMS FOR DAMAGES
30.1 If Company suffers any cost, liability or loss, including but not limited to lost
profits of Company, as a result of a breach of this JV Contract by a Party, the Party
in breach shall indemnify and hold Company harmless in respect of any such cost
liability or loss, including but not limited to interest paid or lost as a result thereof,
however excluded indirect or consequential losses, if the Party in breach has only
committed negligence (and not gross negligence and/or willful misconduct, in
which case the Party in breach shall also be liable for indirect and consequential
losses).
30.2 If the non-breaching Party suffers any cost, liability or loss directly as a result of a
breach of this contract, the Party in breach shall indemnify and hold such non-
breaching Party harmless in respect of any such cost, liability or loss incurred by
non-breaching Party, however excluded indirect or consequential losses, if the
Party in breach has only committed negligence (and not gross negligence and/or
willful misconduct, in which case the Party in breach shall also be liable for
indirect and consequential losses).
ARTICLE 31: SETTLEMENT OF DISPUTES
31.1 All disputes, controversies or differences (collectively referred to as “disputes”)
arising from this JV Contract, its interpretation, and implementation shall be first
amicably settled by negotiations between the Parties. Failure to such amicable
settlement, the disputes shall be finally settled by the competent court of Vietnam.
31.2 Notwithstanding clause 1 herein, in the event of a dispute, both the Vietnamese
and the Foreign Party shall be entitled to request for arbitration, and each of the
Parties individually and jointly hereby explicitly, unconditionally and irrevocably
submit themselves to arbitration in the event of a dispute. If any of the Parties wish
a dispute to be settled by arbitration, such request must be notified to the other
Party in writing within reasonable time after the Parties’ failure to reach an
amicable settlement.
31.3 In the event each of the Party has requested arbitration pursuant to clause 2 herein,
the arbitration shall be within the auspices of the International Chamber of
Commerce (ICC International Court of Arbitration) according to the ICC’s Rules
of Arbitration as in force from time to time. The seat of the Arbitration shall be in
Vietnam unless agreed otherwise between the Parties. The number of arbitrators
shall be 3 (three), of which at least one (1) shall be knowledgeable within
Vietnamese Law and at least 2 (two) shall be non-Vietnamese citizens and/or
residents. The language of the arbitration shall be English, however with a
Vietnamese translator present if the either Party requests so. The arbitral award
shall be final and binding between the Parties.
Joint Venture Contract. Page 16
- ARTICLE 32: FORCE MAJEURE
32.1 “Force Majeure” shall mean any of the following events, which causes any Party
or both Parties to be unable to perform its or their obligations under this JV
Contract, such as prohibition or acts by government or public agency, riot, war,
hostility, public disturbance, strikes, other labor disputes and work stoppages,
failure or difficulty of public utilities, epidemic, fire, flood, earthquake, storm, tidal
wave or other acts of nature, and the other events beyond the reasonable control of
the Parties.
32.2 No Party shall be liable to the other Party for any loss injury, delay, damages, or
other casually suffered or incurred by the later due to the Force Majeure, and any
failure or delay by any Party in performance of any of its obligations hereunder
due to Force Majeure shall not be considered a breach of this JV Contract.
32.3 Notwithstanding the foregoing, in the event of Force Majeure, the Party which is
prevented from performing its obligations hereunder due to such Force Majeure
shall promptly notify, but in no event later than fourteen (14) days after the
occurrence of such Force Majeure, the other Party in writing and shall exert its best
efforts to mitigate the losses to the other Party or to remove the effects of such
Force Majeure, to the full extent possible. Further, the Party affected by the Force
Majeure, as soon as possible after the end of such Force Majeure, shall resume
performance of its obligations and cure the effects of such Force Majeure.
32.4 If a Force Majeure does not end shortly, the Parties shall negotiate to prevent an
excessively unfair result to any Party. In the event that a Force Majeure continues
for longer than six (6) months, then any Party may unilaterally terminate this JV
Contract and demand dissolution and liquidation of Company as provided in
Articles 27 and 28 above, by a notice in writing to the other Party.
ARTICLE 33: CONFIDENTIALITY
33.1 Each Party agrees to keep secret and confidential all information obtained pursuant
to this JV Contract from the other Party or Company, which is designated or is
reasonably considered as confidential by the other Party or Company, as the case
may be. The Parties shall take all necessary precautions in a manner acceptable to
the other Party furnishing the confidential information in order to keep secret and
confidential such information and to restrict its use outside and beyond the scope
of this JV Contract.
33.2 The Parties shall take all necessary steps to ensure that their officers and
employees will comply in all respects with this Article 33.
ARTICLE 34: CIRCUMSTANCES NOT STIPULATED IN THE JV CONTRACT
AND IN THE CHARTER
All other terms and conditions relating to the activities of Company but not stipulated in
the JV Contract and the Charter of Company, shall be implemented by the Parties in
Joint Venture Contract. Page 17
- accordance with the current provisions of the Laws of Vietnam and other provisions (if
any) in the Investment Certificate granted by the Certificate Issuing Authority.
ARTICLE 35: NO WAIVER
The failure or delay of any Party to require performance by the other Party of any
provision of, or any right or obligations under, this JV Contract, shall not constitute a
waiver thereof, nor shall such affect that Party's right to thereafter require performance of
such or any other provision, right or obligation.
ARTICLE 36: LANGUAGE OF THE JV CONTRACT
36.1 This JV Contract is made in English and Vietnamese. Both versions shall be of
equal validity.
36.2 The interpretation of the JV Contract shall be based on stipulations or the spirit of
the JV Contract and the Charter. In case there is a different meaning of a same
article of the English version and the Vietnamese version, and/or the interpretation
of the JV Contract can not be based accurately on the stipulations of this JV
Contract, interpretation shall be based on the will of the Parties and the stipulations
of the Laws of Vietnam and the generally accepted international business practices
and the wording of the Vietnamese version of the Charter and the JV Contract.
ARTICLE 37: AMENDMENTS AND MODIFICATIONS OF THE JV CONTRACT
Any amendment to, or modification of or rectification of this JV Contract shall be made
by written agreement signed by duly representatives of each Party in both Vietnamese and
English versions, each of which shall be equally authentic and shall become effective after
being considered.
ARTICLE 38: GOVERNING LAWS
38.1 The validity and performance of this JV Contract shall be constructed in
accordance with, and governed by, the laws of Vietnam.
38.2 If there is any change in the applicable law, which may create any additional
interest or privileges for Company or the Parties, the Parties shall take every
appropriate measure necessary to procure Company to take advantage of such
interest or privileges, or to enable Company to assist the Parties benefiting from
and enjoying such interest or privileges.
ARTICLE 39: SEVERABILITY
The invalidity of any provision of this JV Contract shall not affect the validity of any other
provision of this JV Contract. The right hereunder to claim indemnification for losses
under this JV Contract shall not be impaired because of the legal invalidity of this JV
Contract.
Joint Venture Contract. Page 18
- ARTICLE 40: NOTICES
40.1 All notices given from one Party to the other Party under or in connection with this
JV Contract shall be in writing and shall be valid and sufficient if dispatched by
registered airmail (postage prepaid), delivered personally, or sent by fax/email
(Confirmed by hard copy to the address and recipients as mentioned above in the
item “Introduction about the Investors”.
40.2 Each Party may change its address for notice by notice given to the other Party in
the manner set forth above.
40.3 Notices given as herein provided shall take effect upon the actual receipt by the
other Party.
ARTICLE 41: HEADINGS
The headings of the articles of this JV Contract are inserted for convenience of reference
only, and do not form a part of this JV Contract, and shall not in any way affect or be
considered in the interpretation hereof.
ARTICLE 42: SIGNING
42.1 This JV Contract is signed in Hanoi, Vietnam and replace the previously executed
one.
42.2 The JV Contract shall be made into four (4) original counterparts in both English
and Vietnamese languages and having equal validity. Each Party shall keep one (1)
set, one (1) set shall be submitted to the Certificate Issuing Authority for
Investment Certificate and one (1) set will be kept at Company
IN WITNESS WHEREOF, the Parties hereto have caused this JV Contract to be signed
in their respective names by their duly authorized representatives as of the date above
written.
For And On Behalf Of
B Company
Name :
Title :
For And On Behalf Of
A Company
Name :
Title:
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- Joint Venture Contract. Page 20
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