SBLAW would like to attach hereto the form of Member’s security contract for client’s reference.
THIS VOTING AGREEMENT (the “Agreement”) is made on this 201:
1) Co., Ltd (the“Lender”)
(2) MR. (the “Borrower”)
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(3) COMPANY LIMITED (the“Company”)
Date of issue:
Place of issue
The Lender, Borrower and the Company are referred to as the “Parties” collectively and “Party” individually.
(A) The Lender and the Borrower have on the date of this Agreement signed a capital financing agreement pursuant to which the Lender granted a loanto the Borrower (the “Capital Financing Agreement”) to finance the capital contribution by the Borrower of VND 00,000,000 in the Company equivalent to 100% percent of the charter capital of the Company (the “Financed Equity Interest”).
(B) In connection with the Capital Financing Agreement, the Borrower is required to enter into this Agreement with the Lender.
NOW, THEREFORE, the Parties agree as follows:
- VOTING RIGHTS AND NOMINATION
1.1 The Borrower undertakes and agrees that he shall not take any action in relation to the Company, whether in its capacity as Owner or otherwise, without the prior written consent of the Lender. In particular, the Borrower undertakes and agrees that, prior to exercising his rights of the Ownerof the Company, the Borrower shall seek the Lender’s directions on how it wishes the Borrower to resolve the individual specific mattersof the Company, and shall only exercise his rights in accordance with such directives of the Lender. In all cases, the exercise of all the Borrower’s rights on any matters of the Company must be consistent with any opinions of the Lender. The Borrower further undertakes that, he and/or his proxy shall not sign any resolutions or documents which are against the instructions of the Lender.
1.2 The Company hereby acknowledges the obligations of the Borrower and the rights of the Lender hereunder and the Company undertakes not to accept any instructions from the Borrower that are contrary to this Agreement or to the directions of the Lender.
2.1 The Borrower undertakes not to perform nor permit the performance of any action that will affect his or the Lender’s rights under the Financed Equity Interest or cause any adverse effect in relation to the exercise of his rights under the Financed Equity Interest either by himself, his proxy or the nominee designated by the Lender.
2.2 The Borrower shall procure that the Company carries out the business in accordance with the directives of the Lender.
- INDEMNIFICATION BY THE LENDER
In exchange of the performance by the Borrower in accordance with Articles 1 and 2 above, the Lender shall indemnify the Borrower against any losses or damages incurred by it as a result of the Borrower’s actions properly carried out in accordance with the directives of the Lender.
The Lender shall not be liable to the Borrower under the foregoing indemnity in respect of any loss or damages which has arisen out of the negligence or default or misconduct of the Borrower and in any case the Lender shall not be liable for any special, indirect, incidental or consequential damages, even if informed of the possibility thereof in advance.
- TERMINATION OF AGREEMENT
4.1 This Agreement shall have effect and be binding upon the Parties as from the date hereof and continue thereafter provided that this Agreement shall terminate earlier upon the occurrence of any of the following:
any step is taken by any person with a view to the winding-up of the Company or for the appointment of a liquidator (including a provisional liquidator), receiver, judicial manager, trustee, administrator, agent or similar officer of the Company or over any part of the Company’s assets;
it is or will become unlawful for a Party to perform or comply with any one or more of its obligations under this Agreement;
any litigation, arbitration or administrative proceeding is current or pending to restrain the exercise of any of the rights and/or the enforcement of or performance or compliance of any of the obligations of the Borrower under this Agreement,
provided further that upon the transfer by the Borrower of the entirety of its Financed Equity Interest in the Company, it shall be released from all its obligations hereunder.
4.2 Notwithstanding anything in this Agreement, the Lender may terminate this Agreement by giving the Borrower and the Company one month prior notice in writing. Upon termination of the Agreement, none of the Parties shall have any claims against the other for costs, damages, compensation or otherwise save in respect of any costs and damages incurred after the termination because of the performance of the Agreement prior to such termination.
5.1 Except as may be required by the appropriate regulatory authorities or by valid legal process, each of the Parties agrees not to disclose any information with respect to their negotiation of or the contents of this Agreement without the consent other than to such Party’s its affiliates or affiliates’ directors, officers, employees, representatives, advisors, nominees or financiers on a need-to-know basis and provided that such person will also abide by this Article.
5.2 If the Borrower is required by applicable law to disclose such information, he is obliged to give a prior written notice of such disclosure to the Lender and to follow the instruction of the Lender to invoke permitted measures to prevent the disclosure.
6.1 Indemnification: Notwithstanding any contrary provisions, the Borrower and the Company shall indemnify and hold the Lender harmless against any and all loss, claims, damages, liabilities incurred by it as a result of the Borrower’s failure to comply with the terms and conditions ofthis Agreement, the Capital Financing Agreement and the Member’ Security Contract and/or any other document entered into by and between the Lender and the Borrower relating to the Financed Equity Interest.
6.2 Non-Transferable: The Parties agree and confirm that no provision of this Agreement authorizes the Borrower and/or the Company to transfer, assign or otherwise permit or require a third party to enjoy or perform any interests and/or obligations of the Borrower and/or the Company under this Agreement without prior written consent of the Lender.
Notwithstanding any contrary provisions contained in this Agreement, the Parties agree and confirm that the Lender shall be entitled to transfer, assign or otherwise permit or require a third party to enjoy or perform interests of the Lender as provided in this Agreement without prior written consent of the Borrower.
6.3 Governing Law: This Agreement and interests of the Parties herewith shall be governed and construed in the laws of Vietnam.
6.4 Dispute Settlement: Any dispute arising out of or relating to this Agreement, including any controversy relating to its existence, validity or termination, shall be solely and finally settled by arbitration under the Rules of Arbitration of the Vietnam International Arbitration Center (VIAC) at the Vietnam Chamber of Commerce and Industry.
6.5 Amendment: This Agreement may only be amended with a valid written document signed by the Parties.
6.6 Survival: If, at any time, any provision of this Agreement shall be or becomes invalid, ineffective or unenforceable in any manner by law of any jurisdiction, the legality, effect, and enforceability of the remaining provisions shall survive and not be impaired in any manner, and such invalid, illegal or unenforceable provisions shall be deemed as not to be included as part of this Agreement.
6.7 Waiver: No failure to exercise, nor any delay in exercising, on the part of the Lender any of its rights or remedies under this Agreement shall operate as a waiver of rights and remedies of the Lender to the Borrower nor any further breach under this Agreement.
6.8 Notice: If any notice, approval or waiver of any rights is given in accordance with this Agreement, such notice, approval or waiver of rights must be made in writing and sent to the Party intended to so notified, approved or waived, and served by hand delivery, registered mail with acknowledgement of receipt or by FedEx, DHL or other international express delivery services, or by facsimile, telegraph or email (in any case, there must be written certification under the form of other accepted notice).
6.9 Counterparts: This Agreement is made into two (2) sets of originals in English and Vietnamese, each party shall keep one (1) set of original. The Vietnamese version shall prevail if there is any inconsistency between the two versions.
IN WITNESS WHEREOF, the Parties to this Agreement shall execute this Agreement on the date as written above.
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