M&A consultancy

Under the circumstances of the rapid development of Vietnam’s economy, the enterprises and especially the startups always have the desire to receive investment from domestic and foreign investors via M&A transactions to improve production lines, technologies, and supply chains to meet the market requirements as well as to develop in new markets. However, most of Vietnamese enterprises are facing difficulties during the negotiation and preparation of legal documents to fulfill the conditions set by investors as well as the conditions prescribed by law to enable the M&A transactions.

As an international law firm specialized in providing legal services to international and domestic enterprises in various matters from investment, corporate re-organization, real estate, labor, M&A, IPO, and intellectual property… Especially, as an expert in M&A transactions, we understand the challenges that the enterprises encounter as well as understand the desires and demands of the investors. Therefore, with our knowledge and experience, the lawyers at Apolat Legal step by step provide supports and advice to clients throughout the stages of dealing included: Legal advisory for deal structure; advice on relevant legal regulations; regulatory overview; legal diligence; consulting management re-organization; preparing/reviewing ownership and management continuity memo; negotiating, drafting / reviewing sales and purchase contracts; perform the licensing and compliance procedures in Vietnam.

From the initiation to conclusion of the transaction, Apolat Legal will always accompany and warn the clients against legal risks and issues that may arise in transactions. The protection and enhancement of our clients’ legal interests is always Apolat Legal first priority.

KEY CONTACT

Dinh Quang Long

Managing Partner

Pham Hong Manh

Senior Partner

RELATED ARTICLES

Apolat Legal_Legal retainer service

Business activities of enterprises are always dependent on and regulated by relevant laws. For effective operation, enterprises need to well control legal risks arising from their operations. Large enterprises tend to build a legal team with good lawyers to help them apply for permits, provide legal advice and resolve labour disputes during their operation.

However, not all businesses have the financial resources to build their own legal department. For businesses that do not have their own legal team, legal retainer service of separate law firms will be the smart choice.

Understanding this issue, Apolat Legal offers businesses a comprehensive legal consulting service at a reasonable fee. Each business choosing the legal retainer service of Apolat Legal will be supported by a consistent team during the time of using service. By this way, Apolat Legal can clearly understand the clients and help the clients save time and avoid providing duplicated information. In addition, businesses only have to pay a fixed monthly fee to receive helpful advice from Apolat Legal for all day-to-day legal needs of business.

Legal retainer service of Apolat Legal includes but not limited to the followings works:

  • Answering, consulting on provisions, and policies of law and giving legal solutions for each specific matter according to the Client’s requirements in multiple practice areas such as investment, construction, real estate, bidding, enterprise administration, banking, security, insurance, commerce, labor, sales and other areas relating to the Client’s business operation (excluding financial and tax advice).
  • Examining, reviewing and confirming the legality of documentations which the Client have drafted or implemented in respect of business operation, giving legal advice for such documentations as required by the Client.
  • Supporting the Client in preparation of all documentation for contract negotiations or parleys (if requires).
  • Supporting the Client in drafting documentations relating to business transactions between the Client and any third party.
  • Consulting with the Client about business discussions, negotiations, parleys, claims, disputes or lawsuits with any third party or any competent State agency relating to the Client’s business operation. (Scope of consultancy excludes representing for the Client in implementation of specific matters or of claims at competent State agencies or of litigation procedures at Court or Arbitration).
  • Consulting with the Client about general solutions relating to each specific claim, dispute or lawsuit.
  • In case any Client’s partner needs our legal support, then, as the Client’s request or that of such partner, we shall consider whether providing our legal services for such partner or not; and if we choose providing, we shall be committed to not causing any damage to the Client or any conflict of rights and legal interests between the Client and such partner.
  • Supporting and consulting the Client on drafting the Charter, Internal Working Regulation, regulations relating to enterprise organization, management and administration and other essential documents during Client’s business operation.

By professional services, thoroughness and experiences in various legal fields, Apolat Legal is the trusted partner of all businesses.

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New regulations in law on investment and law on enterprises affecting M&A deals in Vietnam

The domestic COVID-19 pandemic in Vietnam has been well controlled so far; in addition, the Government of Vietnam continues to issue many investment attraction policies and legal provisions on investment activities in Vietnam, specifically:

  • Law on Investment 2020;
  • Law on Enterprises 2020;
  • Law on Competition 2018 and Decree No. 35/2020/ND-CP elaborating on several Articles of the Competition Law;
  • Law on Securities 2019.

This shows that Vietnam’s economy is expected to show positive signs in the near future. In particular, the M&A activities in Vietnam after a quiet period are also expected to recover and boom strongly.

In this article, we will share new points of the Law on Investment 2020 and the Enterprise Law 2020 coming into effect on January 1, 2021, that will affect M&A activities in Vietnam in the near future.

1. New regulations of the Law on Investment 2020 impact Vietnam’s M&A activities 

(i) Regulations on market approach conditions for foreign investors

According to Article 9 of the Law on Investment 2020 stipulates market approach conditions of foreign investors. Specifically, the regulations are as follows:

  • Foreign investors will not be restricted from approaching the Vietnam market if they have not yet been market approach or conditional market approach.
  • The Government is responsible for clearly regulating the List of industries and trades that have not yet been market approach, or that market approach is conditional.
  • There are 05 types of market approach conditions for foreign investors. 

These shifts have created more clarity and transparency in determining investment conditions for foreign investors. With this regulation, we think it will generate more advantages in the M&A activities of foreign investors.

(ii) Provisions on the implementation of investment activities by foreign-invested economic organizations

In Article 23 of Law on Investment 2020, a reduction of the rate is adjusted to determine whether an economic organization must satisfy the conditions and carry out the prescribed investment procedures for foreign investors when implementing investment forms in Vietnam from 51% of charter capital under the Law on Investment 2014 to 50% charter capital, specifically:

Economic organizations must satisfy the conditions and carry out investment procedures as prescribed for foreign investors when investing in establishing other economic organizations; capital contribution investment, share purchase, capital contribution purchase from other economic organizations; investing in the form of a BCC if the economic organization falls into one of the following cases: 

a) Having foreign investors holding more than 50% of the charter capital or having the majority of the general partners are foreign individuals, if the business organization is a partnership;

b) Having an economic organization specified at point a of this Clause holding more than 50% of the charter capital;

c) Having foreign investors and business organizations specified at point a of this Clause holding more than 50% of charter capital. 

(iii) Provisions on investment in the form of capital contribution or purchase of shares or acquisition of capital contribution portions 

According to Article 26 of the Law on Investment 2020 provides the procedures for registration of capital contribution and purchase of share, contributed capital of foreign investors in economic organizations in Vietnam. The following cases are required for foreign investors to carry out this procedure:

  • There is a change that increases the foreign ownership ratio of foreign investors in economic organizations engaged in conditional market approach for foreign investors;
  • There is a change in the increase in the foreign investor’s ownership rate to more than 50% of the charter capital and the case of a change in the foreign investor’s ownership ratio when they have already owned over 50% of charter capital;
  • Contribute capital, purchase shares, purchase capital contributions of economic organizations having land use right certificates in islands and border and coastal communes, wards and towns, other areas affecting national defense and security.

This provision has some notable points as follows:

  • In case a foreign investor contributes capital, purchases shares, or purchases a capital contribution portions but does not increase the foreign investor’s ownership ratio, the procedure is not required;
  • Additional provisions on the case that foreign investors are required to carry out registration procedures when implementing capital contribution by economic organizations having land use right certificates in islands and border and coastal communes, wards and towns, other areas are affecting national defense and security. This regulations are new, and in our opinion, they aim to control and restrict investment cases being detrimental to or which could be harmful to national defense and security.

(iv) Stipulate the legal basis for merger, division, separation project

In Article 41 of Law on Investment 2020, there are explicit provisions on the legal basis for the merger, division and separation of projects compared to the Law on Investment 2014, specifically:

During the implementation of an investment project, an investor has the right to adjust the objectives, transfer part or the whole of an investment project, merge projects or divide or split a project into multiple projects, use of land use rights, assets on land belonging to an investment project to contribute capital to the establishment of an enterprise, to business cooperation or other matters and in accordance with the provisions of law. 

This is a new point that needs to be concerned by Investors because the Law on Investment 2014 does not specify the cases of adjusting investment projects and the licensing agency must consider and consult relevant agencies. This leads to prolonging the processing time and affecting the merger and splitting of projects, as well as using land use rights and assets on land belonging to investment projects to contribute capital to establish enterprises. 

(v) Add provisions on the case in which the investment registration agency terminates an investment project

At Point e, Clause 2, Article 48 of the Law on Investment 2020 additionally provides for the case that the investment registration agency terminates part or the whole of an investment project if the investors conduct investment activities based on counterfeit civil transaction according to the provisions of Law on Civil.

In our opinion, this provision is intended to control and limit “investment in shadow hiding.” Still, to apply this provision, it is necessary to clarify or note the following:

  • Criteria for determining what is a counterfeit civil transaction;
  • Authorities identifying counterfeit civil transactions;
  • Risks that investors and licensing authority may face;

Difficulties in the process of investment procedures since the licensing authority may request the investor to explain property, land, capital …

2. New provisions of the Enterprise Law 2020 affect M&A activities in Vietnam

(i) Provisions on change of rights of a group of shareholders in a joint-stock company

In Clause 2, Article 115 of the Law on Enterprises 2020, the condition for the ratio of ownership of ordinary shares is reduced from 10% to 5% and removed the requirement for a continuous request of at least six months of a group of shareholders to exercise the rights specified in Clause 2 Article 115 of the Law on Enterprises.

In our opinion, this revision point is consistent with international practice and helps investors to be more proactive and convenient in managing and controlling their investments in Vietnam.

(ii) Complete and supplement regulations related to the organization of the joint-stock company

Regulations on the organizational structure of joint-stock companies are adjusted to conform to general practices and more transparent rules on the position and role of agencies such as the Audit Committee, Company Secretary…

In Article 166 of the Law on Enterprises 2020, shareholders’ right to sue for specific managers is to remove the requirement that shareholders shall own ordinary shares for six consecutive months.

Article 165 of the Law on Enterprises 2020 stipulates and increases the responsibility of the company manager.

In our opinion, the above changes are intended to increase measures to protect investors and to make the Law on Enterprises more consistent with general practices.

(iii) Additional provisions on non-voting depository certificates

In Clause 6, Article 114 of the Enterprise Law 2020, for the first time, the type of non-voting depository certificates is provided, thereby helping to create and diversify investment instruments of investors.

(iv) Supplement regulations on voting rights of voting preference shareholders

In Clause 6, Article 148 of the Law on Enterprises 2020 also provides for voting rights of voting preference shareholders regarding contents that adversely change the interests and obligations of voting preference shareholders.

This provision also aims to protect better investors who own preference shares.

The Law on Enterprise 2020 and the Law on Investment 2020 will take effect from January 1, 2021, so it is hoped that with the content of this article, investors will grasp the new points of the law from there prepare more suitable for business investment activities in general and M&A activities in Vietnam in particular.

 

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

 

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Cross-Border M&A Activities In Vietnam: A Glance In Hospitality Sector

Thanks to a qualified and reasonable human resource, a high urbanization rate as well as a strategic location in the center of Southeast Asia, Vietnam is becoming well-known as a manufacturing hub, growing consumer market and access to a vast marketplace. All these attributes make investing in Vietnam interesting. Correspondingly, the Vietnamese M&A market has grown at an impressive rate in terms of both the numbers of transactions and the deal value, especially in the hospitality sector.

By our experience and evaluation in the progress of advisory for the clients who are the tourism real estate development and operating companies in Vietnam, one of the trends and also is the preferred choice of many current investors and especially foreign investors, they would choose the investment options through M&A implementation in many different ways and methods to carry out investment activities in tourism real estate project in Vietnam.

This handbook will summarize some brief information and legal framework related to a M&A deal in the hospitality sector.

See more handbook as a PDF here.

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IP Due Diligence in a M&A deal

Intellectual property rights that include author rights and related rights (or neighbouring rights), trademarks, patents, industrial design rights, utility solutions (or utility models), semiconductor integrated circuit layout design (or layout design), are commonly defined as intangible assets of a company. Bearing in mind that the IP assets have come to accrue a significant level, or even one of the most valuable assets, of any business, in the consideration of a M&A deals, such assets may be expressed or translated into “tangible forms” in order to be assigned and gain much value for buyers.  

Hence, the need to carry out a thorough IP due diligence when implementing a M&A deal should be of careful consideration. Indeed, an IP due diligence will discover risks related to the IP assets of the target company, identify any assumptions regarding asset valuations, brand valuation as well as selling price of the deal. Unfortunately, in many deals, buyers have paid little attention to IP rights. Usually, buyers mainly focus on the equity structure, the ownership of the company, company debt of the company. 

There are some important factors that must be examined in the process of IP due diligence. This paper will discuss respectively as follows:

Pre-Due Diligence Formalities

The intention to carry out legal due diligence is commonly expressed in the form of a letter of intent or memorandum of understanding before relevant parties participate in the negotiation process concerning the deal. In said documents, several requirements in relation to IP rights will be laid down as the conditions to close the deal. Additionally, a confidentiality agreement between the buyer and the target company is also one of the necessary document between parties to facilitate the disclosure on IP assets from sellers.   

Determine IP Ownerships

When conducting IP due diligence, appointed counsel will examine the ownership of IP assets. For registered IP rights, the relevant certificates will be considered (for example, the certificate of trademark registration or certificates of industrial design registration,…). For IP rights that do not need to be registered or cannot be registered (for example author rights and related rights, rights related to trade secret, …), buyers should examine whether the target company is entitled to own such rights.

It is noteworthy that Vietnam is a pro-employee country. The IP law pays close attention to the copyright protection of works created by employees. Accordingly, copyright and related rights for works created by employees shall belong to the employers during working hours, unless the parties have agreed otherwise. However, the employee is entitled to personal rights to their work (i.e. named as the author or rights to the integrity of the works).

Regarding technology companies, DD lawyers also need to examine if the products of Target Company (websites, software, platforms,…) was written, conceived, developed and tested pursuant to a written agreement through which all relevant IP rights owned by parties involved in the development (including in-house developers, third-party developers, any current and former employees of the Target Company) were validly assigned to the Target Company.  Besides, it is important to ensure that there is no further consents, assignments, waivers required for all of each developer’s rights, title and interests (including intellectual property) in any part of the software, to be assigned to or otherwise fully vested in the Target Company.

Identify Litigation Risk

In Vietnam, the public acknowledgement about IP enforcement is still respectively low. For that reason, the risk of litigation is at high level. Thus, buyers must ensure that IP assets are clear of disputes or potential disputes. Besides, some assets may also be governed by agreements that restrict the rights of the target company (as the owner of IP rights) to transfer capital. In this context, conducting the acquisition deal may lead to serious legal liability for the target company.

In most deals, sellers must guarantee that the company products or services do not and did not infringe any rights or interests of third parties in intellectual property and has received any offers of or invitations from a third party to obtain a licence to intellectual property in connection with any products or services to avoid any IP infringing the IP rights of any third party.

Contractual Compliance

The obligations related to IP rights are usually observed in many types of commercial contracts, for example license agreements, franchise agreements, distribution agreements, agency agreements, … Commonly, the agreements would include several limitations to the use of relevant IP rights in Vietnam or under certain ways. These restrictions definitely impact on the determination of selling price. For instance, it is not uncommon that many Vietnamese artists do not publish, and try to prevent other parties from using, their works on YouTube or Facebook. Therefore, through IP due diligence, consultants of the buyer will examine if the target company have been complying with obligations under these agreements.

Foreign Regulations

In an acquisition deals in which buyer and seller are in different countries, parties must take the utmost care since IPRs are treated differently in various countries.

When dealing with a M&A deal, buyers must take into account the importance and benefits of carrying out the effective IP due diligence. When properly protected, IP assets can drive a business forward and generate significant revenue. From the view of the target company, they may conduct IP due diligence to make the company more marketable.

Posted on The Saigon Times, dated March 5th, 2020.

 

If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.

This article is for general information only and is not a substitute for legal advice.

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