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NOMINEE MEMBER AGREEMENT IN VIETNAM
This nominee member agreement is made on ………… day of ………….., 20……, of …………………….Street, Ward……, ………District, ……………….Province, Vietnam.
BY AND BETWEEN
(Name of foreign party), of …………………….Street, Ward……, ………District, ……………….Province, Vietnam (hereinafter as “Beneficiary”)
(Name of Vietnam Party), of …………………….Street, Ward……, ………District, ……………….Province, Vietnam (hereinafter as “Nominee Member”) (jointly the “Parties”)
It is mutually agreed that
1) The Nominee Member hereby agree to hold the ……..% Charter Capital (“Stakes”) of A Company Limited (“A Company”) for the Beneficiary, which is equivalent to VND……….. The Beneficiary hereby declares and appoints the Nominee Member to act on his/her behalf in relation to Beneficiary’s beneficial interest in the Stakes.
2) The Nominee Member undertakes to incorporate A Company and register the Stakes in the Nominee Member’s name, and hold the Stakes and all Profits and interests accrued or to accrue on trust for the Beneficiary. Furthermore the Nominee Member shall transfer and deal, in all respects, and to pay the Stakes and any Profits, interest and other benefits thereon and accretions thereto in such manner as the Beneficiary shall from time to time direct. The Nominee Member will also at the request of the Beneficiary attend all meetings of Members of A Company and will vote at every such meeting in such manner as the Beneficiary shall have prior directed in writing.
3) The Rights and Liabilities of Beneficiary
3.1) The Beneficiary is entitled to the Stakes and all Profits and interests accrued or to accrue. The Nominee Member shall not pledge or sell or assign or in any way impair the Stakes.
3.2) To the extent permitted under Vietnam Law on Enterprise or at any time that the Beneficiary deemed proper, the Nominee Member shall transfer all of the Stakes held by Nominee Member to the Beneficiary (or any person designated by the Beneficiary). The Nominee Member is obliged to accept unconditionally and execute all necessary documents in relation to the aforesaid transaction. For the avoidance of doubt, the Beneficiary shall bear and compensate the Nominee Member for all costs reasonably incurred (including but not limited to legal fee, audit fee, and valuation fee) in holding the Stakes on trust for the Beneficiary. The Beneficiary shall pay such cost within 5 days of accepting the invoice, or the Nominee Member may otherwise deduct such cost from the any Profits, interest and other benefits thereon before delivering to the Beneficiary.
3.3) The Beneficiary shall be responsible and made the capital injection to subscribe the Stakes within 90 days from incorporation. The Beneficiary shall be subject to all the consequences upon failure to make the capital contribution to subscribe the Stakes in time.
3.4) Subject to the provisions of this Agreement, the Beneficiary is entitled to a review of the Nominee Member’s performance in holding the Stakes for the Beneficiary, where a breach or default is caused by the act of the Nominee Member. Without prejudice to the generality of the foregoing, the Beneficiary is prohibited from interfering the normal activity of Nominee Member.
3.5) In the event that the Nominee Member is not in good faith, the Beneficiary is entitled to withdraw this authorization with 30-days prior notice, and appoint its successors.
4) The Rights and Liabilities of the Nominee Member
4.1) The Nominee Member is entitled to execute the Member rights with regard to the operation of A Company without jeopardizing the interest of the Beneficiary.
4.2) The Nominee Member is prohibited from assigning the Stakes to any third party unless otherwise consent by the Beneficiary.
4.3) Subject to the provisions of this Agreement, the Nominee Member shall vote at every meetings of Members Council, or otherwise which it shall be entitled to attend by virtue of being the registered proprietor of the Stakes, in such manner as the Beneficiary or its successors in title shall have directed in 3-days prior writing notice. The Nominee Member hereby undertake not to transfer, assign or pledge the Stakes unless otherwise agreed by the Beneficiary.
4.4) The Nominee Member hereby agrees to transfer and pay the Profits interest and other benefits thereon and accretions thereto to the Beneficiary within three (10) days after the aforesaid Profits and other benefits are available. In the event that the aforesaid monies becomes due and outstanding, the Nominee Member is subject to a penalty equivalent to the penalty rate of commercial bank loans in Vietnam.
4.5) Nominee Member is obliged to provide unconditional assistance if the Beneficiary desires to transfer the Shares to existing Company A Members or any designated third parties.
5) The Parties acknowledge and confirm any information exchanged by the Parties in connection with this Agreement are confidential, and the Parties shall maintain the secrecy and confidentiality of all such information, except that (a) such information is already known or may be known by the general public; or (b) one Party has received the prior written approval by the other Party. This clause shall survive whatever this Agreement is invalid, amended, revoked, terminated or unable to implement by any reason. The disclosure of the confidential information by any Party shall be deemed a breach of this Agreement, and such Party shall bear the liabilities for breaching the contract.
6) The execution, validity, construing and performance of this Agreement and the resolution of disputes under this Agreement shall be governed by the laws of Vietnam. The parties shall strive to settle any dispute arising from the interpretation or performance, or in connection with this Agreement through friendly consultation. In case no settlement can be reached through consultation, It shall be resolved by arbitration before a neutral arbitrator at the Vietnam International Arbitration Centre (VIAC) in accordance with its Rules of Arbitration. Any resulting arbitration award shall be final conclusive and binding upon the parties.
7.1) This Agreement has been executed in Vietnamese and English in two (2) duplicate originals; each Party holds one (1) original and each duplicate original shall have the same legal effect.
7.2) The effective date of this Agreement shall be the signing date of this Agreement or the incorporation date, whichever is earlier.
7.3) Under the circumstances that this Agreement is available in both Vietnamese and English versions; and in the event of any inconsistency between the two versions, the English language version shall prevail.
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