Importants Matters to Consider in M&A Contract

Before carrying out merger or acquisition (M&A), enterprises need to research carefully regulations of law to protect their rights and interests. Regulations on each aspect of M&A activities are referred to in various legal documents such as Law on Enterprises, Commercial Law, Competition law, Law on Investment, Civil Code … When carrying out M&A, enterprises should also pay attention to some basic terms in the contract. The M&A lawyers should be referred to for effective process and minimizing risks of the transaction. Definition, this term is used to define words, phrase used many times or unified understanding between the parties or abbreviations.

Entity, the parties should specify the parties’ information such as: corporate names, address of headquarter, name, position of legal representative, identity card number (or passport number) of legal representative, corporate tax code, … according to enterprise registration certificate or investment registration certificate. When entering into contract, the parties can contact and ask partners to provide copies of enterprise registration certificate or investment registration certificate to ensure correct information and authority to sign.

M&A conditions in M&A contract. Conditions for M&A are conditions agreed by two parties to carry out M&A. M&A is carried out only when these conditions have been met. These conditions include conditions agreed by General Meeting of Shareholders, Board of Directors, the company owner; Conditions of announcing company status, financial obligations, business activities …, announcing to relevant third parties; Conditions of business activities, company activities; Conditions of people, personnel.

Declaration and commitment of both parties on the status of enterprises, contract need to have term of affirmation and commitment of seller about corporate debt. This will limit disputes and risks for the buyer.

Determination of assets and financial obligations in M&A contract. This determination includes time of determination, entity, related costs, methods for disposal of assets.

Transfer of rights and obligations in M&A contract. The time of transfer, the time of enjoying rights and generating obligations, the conditions for transfer, the mode for transfer, the transfer procedures and the papers, documents needed to transfer, includes: transfer of ownership rights, economic rights; transfer of effective contract; Arising benefits enjoyed by merged company; Tax obligations, insurance obligations, wages for employees and debt repayment obligations.

Methods and time of payment, parties need to specify methods for payment and specific duration of payment with amount of each installment payment. In order to ensure safety, the parties should request a competent reputable organization to provide intermediary financial services. This third party will stand out to ensure the parties of the contract to comply correctly and legally with the agreement.

Conditions, time limit, procedure of M&A, the buyer needs to specify attached conditions and specific time in process of M&A to let the seller perform obligations of transfer of asset, stocks, shares under regulations of contract. Procedures include procedures under law and other procedures under company’s charter.

Legal rights and obligations, parties need to detail obligations in previous period, during and after contract performance as well as the specific time of termination.

Time limit of contract performance, parties need to specify the time of taking effect and termination, or arising grounds which result in the termination of the contract.

Term of dispute resolution, dispute may be brought to the competent Court or Commercial Arbitration for settlement.

Term of fines against violations is also necessary to pay attention. This is a type of sanctions made by the parties but this must be suitable for the regulations of law.

Force majeure clause. Force majeure is a legal event arising out of subjective will of the parties. These cases make one or both parties unable to perform or perform improperly their obligations. When breaching the contract due to a force majeure event, the law would not force to take responsibility for the asset.

Besides, merger contract should have term of transfer of stock, term of employee utilization plan after merger and acquisition.

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Flourishes in Attracting Investment in Can Tho

Can Tho has welcomed many large-scale investment projects from foreign and domestic investors come to set up company in Can Tho.

The city has issued investment policy decisions for 18 domestic projects, with a total registered capital of over 25,046 billion VND and 9 projects with foreign direct investment (FDI) with a total registered capital of 65.28 million USD. Accumulated to date, Can Tho has a total of 103 domestic investment projects, with a registered capital of over 63,324.76 billion VND and 86 FDI projects, with a total registered capital of over 748 million USD.

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Business development situation of Can Tho also has positive changes. It is estimated that in 2019, the city issue new business registration certificates to 1,500 enterprises of all types, with a total registered capital of 11,500 billion VND, an increase of 7.37% in the number of businesses and an increase of 46.98% of registered capital compared to 2018, bringing the total number of active businesses to about 10,000; accounting for about 26% of all businesses in the Mekong Delta region.

Over the years, Can Tho has invested strongly in the infrastructure system, especially the transport infrastructure, step by step completed in a synchronous and modern manner, better meeting the needs of socio-economic development and attracting investment not only for Can Tho, but also for the whole Mekong Delta region.

In terms of maritime, the central port of Can Tho including Hoang Dieu and Cai Cui wharves has completed upgrading and basically completed to accommodate such vessels as 10,000 DWT full-load and 20,000 DWT to reduce loading. The shipping channel project for large vessels entering the Hau River has been completed and cleared with technical channels, creating favorable conditions for transporting import and export goods.

Regarding aviation, Can Tho International Airport has strengthened the exploitation of more domestic routes to and from major cities in the country, along with two international routes to Thailand and Malaysia. Especially, from the beginning of 2020, the route of Can Tho – Seoul (Korea) operated by VietJet will officially open with the frequency of 3 flights/week.

Regarding road traffic, as planned, in April 2021, Trung Luong – My Thuan expressway will be put into use. Along with that, the My Thuan – Can Tho expressway deployed to invest will connect smoothly and quickly Can Tho with Ho Chi Minh City – the largest economic center of the country.

Besides, the investment promotion and image promotion of the locality are paid special attention. In 2019, the City has organized many missions to promote domestic and foreign investment cooperation, focusing on potential markets suitable to local investment attraction needs, such as Japan, Malaysia, Singapore, Czech Republic, Russia…

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Several Noted Points on Law Competition of 2018

On Jun 12th, 2018, The National Assembly promulgated Competition Law which will take effect from July 1st, 2019 and replace the Competition Law 2004. According to Article 3.9, violation of regulations on economic concentration is one of three signs of violation of competition law.

Firstly, economic concentration includes the following forms: (1) Merger of enterprises; (2) Consolidation of enterprises; (3) Acquisition of enterprises; (4) Joint venture between/among enterprises; (5) Other forms of economic concentration under regulation of the laws (Article 29). Subject carrying out activities of economic concentration is enterprises and the purpose of economic concentration is to gain control the objective enterprises and to govern the market to a certain extent.

Secondly, economic concentration shall be prohibited if it makes or potentially makes significant competition-restraining impact on the Vietnamese market. Specifically, the National Competition Commission shall assess the impact or ability making significant competition-restraining impact of economic concentration based on the following factors: (1) Combined market share of enterprises engaging in the economic concentration on the relevant market; (2) The degree of concentration on the relevant market before and after the economic concentration; (3) The relationship of the enterprises engaging in the economic concentration in the production, distribution or supply chain for a certain kind of goods/service or the business lines of the enterprises engaging in the economic concentration which are inputs or complementary to one another; (4) Competitive advantage brought about by economic concentration in the relevant market; (5) The ability of enterprises after the economic concentration for increasing significantly their prices or Return on sales; (6) The ability of enterprises after the economic concentration for removing or preventing other enterprises from market entry or expansion; (7) Particular factors in the sectors, areas which enterprises are engaging in economic concentration.

Thirdly, enterprises engaging in the economic concentration shall submit notification dossier of economic concentration to the National Competition Commission before initiating economic concentration if they reach the threshold of economic concentration notification. The notification threshold shall be determined based on one of the following criterias: (1) Total assets of the enterprises engaging in the economic concentration on the Vietnamese market; (2) Total turnover of enterprises engaging in the economic concentration on the Vietnamese market; (3) The transaction value of the economic concentration; (4) Combined market share of enterprises engaging in the economic concentration on the relevant market. For efficient preparation of dossiers, the consultation with M&A lawyers, anti competition lawyer are suggested.

Fourthly, regarding assessment procedure, the National Competition Commission shall receive notification dossier of economic concentration, preliminarily assess the economic concentration. Matters of preliminary assessment of economic concentration include: (1) Combined market share of enterprises engaging in the economic concentration on the relevant market; (2) The degree of concentration on the relevant market before and after the economic concentration; (3) The relationship of the enterprises engaging in the economic concentration in the production, distribution or supply chain for a certain kind of goods, service or the business lines of the enterprises engaging in the economic concentration which are inputs or complementary to one another. Within 7 working days from receipt of notification dossier of economic concentration, the National Competitive Commission shall notify the applicant in writing that whether the dossier is complete and valid. If the dossier is incomplete or invalid, the National Competition Commission shall notify the applicant in writing of specific content needed to amend, supplement within 30 days from the date of notice. Upon expiry of 30 days, if no amendment, supplementation is made or the dossier is not amended, supplemented completely at request, the National Competition Commission shall return the notification dossier.

After preliminary assessment of economic concentration, the National Competition Commission shall officially assess the economic concentration within 90 days from the date of notice of preliminary assessment result. In complicated cases, the National Competition Commission may extend the time limit of official assessment but it can not exceed 60 days and inform in writing enterprises submitting the notification dossier of economic concentration. Matters of official assessment of economic concentration include: (1) Assessing the impact or ability making significant competition-restraining impact of economic concentration; (2) Assessing the positive impact of economic concentration; (3) Assessing generally the ability making competition-restraining impact and ability making positive impact of economic concentration to. In process of official assessment of economic concentration, the National Competition Commission require the enterprise to submit notification dossier of economic concentration in order to supplement information, documents but this does not exceed 2 times. The enterprise submitting notification dossier of economic concentration shall be responsible for supplementing the information, documents relating to economic concentration and be responsible for the completeness and accuracy of such information, documents at the request of the National Competition Commission. This supplementation duration shall not be included in the time limit for assessing economic concentration. If the enterprise fails to supplement fully information, documents or supplement incompletely information, documents at request, the National Competition Commission shall consider, decide on the basis of available information, documents.

The fifth matter is right, responsibility and authority of the parties. In process of assessing economic concentration, the National Competition Commission is entitled to consult the bodies managing sectors, areas which enterprises are engaging in operating economic concentration, consult other relevant enterprises, organizations, and individuals; be responsible for ensuring confidentiality of information, documents provided under regulations of the laws; has the authority to handle complaints against decisions on settlement of violations against regulations on economic concentration. The consulted bodies are responsible for responding to consulted matters in writing within 15 days from the date on which the request for consultation made by the National Competition Commission is received. Relevant bodies, organizations, and individuals is responsible for fully, accurately and promptly providing information, documents at request of the National Competition Commission in the process of assessing economic concentration unless otherwise stipulated.

Sixthly, regarding decision on economic concentration, after and based on the official assessment of economic concentration, the National Competition Commission shall issue a decision determining that: (1) The economic concentration is approved. This decision shall be sent to enterprises engaging in economic concentration within 5 working days from the date of issue; (2) the economic concentration is conditional; (3) the economic concentration is prohibited. If the National Competition Commission issues a decision behind schedule which causes damage to enterprises, it shall compensate for such damage under regulation of the laws. Decision on economic concentration shall be announced, except for the matter relating to State secrets or trade secrets.

Seventhly, conditional economic concentration is economic concentration which is approved and it shall meet one or more of the following conditions: (1) Division, split, resale of a part of capital contribution and property of enterprises engaging in economic concentration; (2) Control of the matters relating to the purchase and sale prices of goods, services or other trading conditions in contracts of enterprises formed after the economic concentration; (3) Other measure for remedying the ability making competition-restraining impact on the market; (4) Other measures for enhancing the positive impact of economic concentration.

Finally, violations against regulations on economic concentration includes the following violations: (1) An enterprise fails to notify of economic concentration; (2) An enterprise implements economic concentration without receiving a notification of preliminary assessment from the National Competition Commission; (3) An enterprise in cases of official assessment implements economic concentration before the National Competition Commission issues a decision; (4) An enterprise fails to perform or incompletely perform conditions specified in the decision on economic concentration; (5) An enterprise implements economic concentration which is prohibited.

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Hai Duong Improves the Quality of Attracting Foreign Direct Investment

With 450 foreign direct investment projects with a total registered investment capital of over 8.36 billion USD, Hai Duong is becoming a destination for foreign investors to come and set up company in Hai Duong.

In 2019, the socio-economic situation of Hai Duong continues to be stable, developed and completed, exceeding 11/16 targets set out in the plan. Gross domestic product of the province is estimated to increase by 8% compared to 2018.

In the field of attracting investment, according to Hai Duong Department of Planning and Investment, up to November 2019 in the province has granted 60 new projects with a registered capital of 428.1 million USD (27 projects outside industrial parks, with capital of 175.1 million USD; 33 projects in industrial parks with capital of 253 million USD), an increase of 76% compared to 2018. It is expected that by the end of 2019, the province will grant 61 new projects with total registered capital of 446.1 million USD, up 60% compared to 2018.

The projects focus on manufacturing high-tech products, electrical products and electronic components, automobiles, cement, steel, textiles, manufacturing, precision engineering equipment.

The point of recognition is that the scale of investment projects is quite even, reaching 7 million USD/project. Some projects have good capital scale such as paper manufacturing factory (40 million USD); Magnets Project Ferrite Union Materials (22.7 million USD); George Glory Leather and Footwear Production Project (37 million USD); BW Hai Duong Industrial Development Project (32.2 million USD); Tinh Loi Garment Project (39 million USD).

In 2019, there are 13 countries and territories having investment projects in the area. In general, investors coming to learn and invest still focus on some familiar countries such as Hong Kong, Korea, China, Samoa, Japan, Singapore, British Virgin Islands, Seychelles…

It can be seen that Hai Duong province is increasingly an attractive destination for foreign investment.

The attraction of FDI projects has contributed significantly to the mobilization of Hai Duong’s total social investment capital in socio-economic development, job creation and income generation for Hai Duong workers; ensure social security, reduce poverty, increase revenue for local budgets.

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