ELMT 8-K
Elmet Group Co. (ELMT)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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area code: (
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| The |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01. Entry into a Material Definitive Agreement.
Share Purchase Agreement
On September 23, 2026, The Elmet Group Co., a Delaware corporation (the “Company,” “we,” “us” or “our”) entered into a share purchase agreement (the “Purchase Agreement”) with Masan Horizon Company Limited (“the Seller”) pursuant to which the Seller agreed to issue and sell, and the Company agreed to purchase, a 4.99% interest in the total issued and outstanding voting ordinary shares of Masan High-Tech Materials Corporation, a public company incorporated in Vietnam and controlled subsidiary of the Seller (“Masan”), or 55,138,174 ordinary shares (the “Shares”) of Masan for an aggregate purchase price of approximately $124,750,000 (the “Purchase Price”) pursuant to a put-through transaction on the UPCoM in accordance with applicable trading rules and regulations (the “Transaction”). The Transaction will be conducted in VND based on the converted VND amount of the Purchase Price. Masan’s ordinary shares are currently registered for trading on the UPCoM under the trading code “MSR.”
The Purchase Agreement includes customary representations, warranties and covenants by the Company and the Seller. The representations, warranties and covenants contained in the Purchase Agreement were made only for the purposes of such agreement and as of the specific dates, were solely for the benefit of the parties to such agreement and may be subject to limitations agreed upon by the contracting parties. The closing of the Transaction is expected to occur on October 1, 2026 (the “Closing Date”), subject to the satisfaction or waiver of certain closing conditions, including, but not limited to, the execution of certain commercial agreements between the parties, the receipt of applicable regulatory and trading market approvals, the accuracies of the representations and warranties of the parties as of the applicable Closing Date, the performance of each of the parties under the Purchase Agreement in all material respects, the execution of all definitive documentation for the Transaction, and the absence of a material adverse effect (as such term is defined in the Purchase Agreement) having occurred with respect to a party that is continuing as of the time immediately prior to the first put-through order is entered in connection with the Transaction. The settlement of the Shares and payment of the Purchase Price is expected to occur on October 5, 2026 (the “Settlement Date”).
However, if the purchase price per Share on the Closing Date is below the minimum price at which the Shares may be traded on UPCoM on that trading day (the “Floor Price”) or above the maximum price at which the Shares may be traded on UPCoM on that trading day (the “Ceiling Price,” such range being the “Permitted Trading Band”), then the Closing shall be deferred until the parties can complete the Transaction either as (i) a put-through transaction or (ii) an off-band transaction, provided the Seller receives approval from the State Securities Commission of Vietnam (the “SSC”) to proceed with the Transaction outside of the trading system of UPCoM at the purchase price per Share, notwithstanding that the purchase price per Share falls outside the Permitted Trading Band (the “Trading Band Approval). If the Seller receives the Trading Band Approval, then within two (2) business days of such receipt, the parties shall implement an off-band transaction pursuant to which the Seller shall submit a request to the Vietnam Securities Depository and Clearing Corporation (the “VSDC”) for the transfer of the Shares from the Seller to the Company. The date on which VSDC approval is received shall then constitute the Closing Date.
If at any time before the Trading Band Approval is obtained in connection with the off-band transaction, the purchase price per Share falls within the Permitted Trading Band, then the parties shall instead implement the Transaction as a put-through transaction on UPCoM in accordance with the applicable trading rules and regulations.
The Purchase Agreement may be terminated prior to the Closing Date by mutual written agreement of the Seller and the Company, or by either party under certain specific circumstances provided for in the Purchase Agreement. The Purchase Agreement can also be terminated after the Closing Date only to the extent that the Transaction may lawfully be cancelled or unwound under applicable laws and trading rules and regulations.
If the Transaction does not close prior to the 30th business day after the date of the Purchase Agreement (the “Long Stop Date”) solely due to matters outside of the Company’s reasonable control, such as regulatory approvals, Trading Band Approval or market procedures, the parties shall discuss in good faith and may agree in writing to extend the deferral period for one or more additional periods of up to thirty (30) business days each, in which case the Long Stop Date shall be extended accordingly.
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The Purchase Agreement provides for a break fee of $24,950,000, payable in VND based on the converted VND amount, by either the Seller or the Company, as applicable, if the closing of the Transaction does not occur by the applicable Long Stop Date solely as a result of such party’s material failure to comply with its obligations under the Purchase Agreement, subject to satisfaction or waiver of the applicable conditions precedent and certain other conditions. Any such break fee is payable within five (5) business days following the Long Stop Date.
Shareholders’ Agreement
On September 23, 2026, the Company and the Seller also entered into a Shareholders’ Agreement pursuant to which the parties memorialized certain of the Company’s rights in connection with the Transaction.
The Company is entitled to all dividends and other distributions declared, paid or made by Masan in respect of the Shares on or after the Settlement Date, in the case the Transaction is completed as a put-through transaction, or on or after the Closing Date, in the case the Transaction is completed as an off-band transaction, in accordance with the Company’s percentage shareholding in Masan; provided, however, that the parties acknowledged that the Company shall not participate in the interim dividends for the 2026 financial year declared by Masan. For each of the three (3) financial years following the financial year in which the Closing Date falls, the Seller shall procure that Masan targets a dividend payout ratio of up to eighty percent (80%).
For so long as the Company, or any permitted Company transferee (collectively, the “Elmet Investors”), hold at least eighty percent (80%) of the Shares, subject to customary adjustments for corporate actions affecting the Shares following the Closing Date (the “Retention Threshold”), the Company shall have the right to nominate one individual (the “Elmet Director”) for appointment to Masan’s board of directors (the “Masan Board of Directors”) for whom the Seller shall make all reasonable efforts to ensure the Elmet Director is appointed to the Masan Board of Directors at the first annual general meeting of shareholders of Masan held after the Closing Date or at any other general meeting of shareholders of Masan held before that annual general meeting. During the period commencing on the Closing Date and ending on the date on which the Elmet Director is appointed to the Masan Board of Directors, the Seller shall ensure the Elmet Director, or another individual designated by the Company, may attend all meetings of the Masan Board of Directors in a non-voting observer capacity, subject to certain requirements and exceptions (the “Elmet Observer”).
If at any time the Retention Threshold is no longer satisfied, the Shareholders’ Agreement ceases to be in full force and effect, or the Company is in material breach of the Shareholders’ Agreement which is not remedied within the applicable cure period, at the Seller’s request, the Company shall procure that the Elmet Director immediately resign as a member of the Masan Board of Directors and such nomination right shall terminate. However, if at any time the Retention Threshold is no longer satisfied, but the Elmet Investors continue to hold, in aggregate, at least fifty percent (50%) of the Shares originally acquired pursuant to the Purchase Agreement and the Company is not in material breach of the Shareholders’ Agreement, then the Company shall remain entitled to designate one individual as the Elmet Observer to attend the meetings of the Masan Board of Directors in a non-voting observer capacity, subject to certain requirements and exceptions.
Pursuant to the Shareholders’ Agreement, and subject to certain exceptions, the Elmet Investors have agreed not to transfer any Shares, without the prior written consent of the Seller, for a period of eighteen (18) months following the Closing Date. In addition, for a period commencing on the Closing Date and ending on the date falling six (6) months after the Closing Date, the Seller shall not enter into any transaction or series of transactions with any third party comprising a sale of Masan’s ordinary shares at a valuation lower than the valuation of Masan applicable to the Transaction, subject to certain exceptions.
For so long as the Retention Threshold is satisfied, if the Seller or Masan propose to enter into a Restricted Transaction (as defined in the Shareholders’ Agreement), the Company shall have the right to participate in such Restricted Transaction by matching the terms, subject to certain conditions and exceptions. Provided that the Seller or Masan completes a Restricted Transaction for which the Company did not exercise its right to participate, then (i) all lock-up and transfer restrictions applicable to the Shares held by the Elmet Investors shall cease to apply, to the extent permissible under applicable law and (ii) the Company shall have the option, exercisable by written notice to the Seller within thirty (30) days of completion of the relevant Restricted Transaction, to terminate any relevant commercial agreement entered into between the parties or their affiliates in accordance with their terms.
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Furthermore, if Masan proposes to issue new securities at a price per Share lower than the purchase price per Share in the Transaction within eighteen (18) months following the Closing Date, then the Company shall have the right to acquire up to such portion of the new securities of Masan offered in such proposed offering equal to the Company’s ownership percentage of the then issued and outstanding ordinary shares of Masan, subject to certain exceptions.
Pursuant to the Shareholders’ Agreement, the parties shall establish a joint committee (the “Offtake Rights Committee”) comprising two (2) representatives appointed by each of the Company and Masan, or such other equal number as the parties may agree in writing, which will serve solely an advisory function with no decision-making authority. The Offtake Rights Committee shall coordinate volumes, scheduling, quality specifications, logistics and approved customers solely in respect of volumes subject to the offtake and conversion arrangements under the commercial agreements entered into between the parties.
The Shareholders’ Agreement shall terminate upon the occurrence of any of the following: (i) termination of the Purchase Agreement prior to the Closing Date, (ii) Masan being dissolved, liquidated or wound up, (iii) either the Company or the Seller ceasing to hold any equity securities of Masan, (iv) a liquidation event with respect to either the Company or the Seller, (v) by mutual written agreement of the Company and the Seller or (vi) if necessary to comply with applicable securities laws, trading market rules and regulations or the requirements of any securities exchange in connection with a listing of the ordinary shares of Masan.
The Company will also enter into certain offtake agreements with the Seller for the supply of tungsten concentrate and blue tungsten oxide prior to the Closing Date.
The foregoing summaries of the Purchase Agreement and the Shareholders’ Agreement do not purport to be complete and are subject to and are qualified in their entirety by reference to the full text of such agreements, copies of which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 7.01. Regulation FD Information.
Press Release
On September 23, 2026, the Company issued a press release announcing the Transaction. A copy of the press release is attached hereto as Exhibit 99.1 and incorporated by reference herein.
The information furnished in Item 7.01 of this Current Report on Form 8-K under the heading “Press Release” as well as Exhibit 99.1, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, unless the Company specifically states that the information is to be considered “filed” under the Exchange Act or specifically incorporates it by reference into a filing under the Securities Act of 1933, as amended, or the Exchange Act.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are being filed herewith:
| Exhibit No. | Description | |
| 10.1+†# | Share Purchase Agreement, dated September 24, 2026, by and between The Elmet Group Co. and Masan Horizon Company Limited | |
| 10.2† | Shareholders’ Agreement, dated September 24, 2026, by and between The Elmet Group Co. and Masan Horizon Company Limited | |
| 99.1 | Press Release, dated September 23, 2026 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
| + | Certain portions of this exhibit (indicated by “[*]”) have been omitted pursuant to Item 601(a)(6) of Regulation S-K. |
| † | Certain portions of this exhibit (indicated by “[**]”) have been omitted pursuant to Item 601(b)(10)(iv). The Company hereby agrees to furnish supplementally an unredacted copy of the exhibit to the SEC upon its request. |
| # | Certain annexes, schedules and exhibits have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted attachment to the SEC on a confidential basis upon request. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: September 24, 2026 | The Elmet Group Co. | |
| By: | /s/ Peter V. Anania | |
| Name: | Peter V. Anania | |
| Title: | Chief Executive Officer and Chairman | |
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Exhibit 10.1
SHARE PURCHASE AGREEMENT
DATED SEPTEMBER 24, 2026
between
THE ELMET GROUP CO.
and
MASAN HORIZON COMPANY LIMITED
TABLE OF CONTENTS
| Page | |
| Article 1. DEFINITIONS AND INTERPRETATION | 1 |
| Section 1.01 Definitions | 1 |
| Section 1.02 Interpretation | 7 |
| Article 2. SALE AND PURCHASE OF SHARES | 8 |
| Section 2.01 Sale and Purchase of Shares | 8 |
| Section 2.02 Payment of Purchase Price and Settlement Arrangements | 8 |
| Article 3. CONDITIONS PRECEDENT | 9 |
| Section 3.01 Conditions to the Buyer’s Obligations | 9 |
| Section 3.02 Conditions to the Seller’s Obligations | 10 |
| Section 3.03 Responsibility for Satisfaction | 11 |
| Section 3.04 Cooperation | 11 |
| Section 3.05 Regulatory Condition to Closing | 11 |
| Article 4. CLOSING | 12 |
| Section 4.01 Closing Date | 12 |
| Section 4.02 Trading Band Test | 13 |
| Section 4.03 Put-Through Transaction Closing Actions | 13 |
| Section 4.04 Put-Through Transaction Settlement | 14 |
| Section 4.05 Deferral and Off-band Transaction | 14 |
| Article 5. POST-CLOSING COVENANTS | 15 |
| Section 5.01 Funding Agreement | 15 |
| Section 5.02 Execution of the Commercial Agreements | 16 |
| Section 5.03 Post-Closing Obligations | 16 |
| Article 6. TERM AND TERMINATION | 16 |
| Section 6.01 Termination of Agreement | 16 |
| Section 6.02 Consequences of Termination of Agreement | 17 |
| Section 6.03 Break-Fee | 18 |
| Article 7. REPRESENTATIONS AND WARRANTIES | 19 |
| Section 7.01 Representations and Warranties of the Seller | 19 |
| Section 7.02 Representations and Warranties of the Buyer | 22 |
| Section 7.03 Separate Representations and Warranties | 23 |
| Section 7.04 Survival | 23 |
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| Article 8. MISCELLANEOUS | 24 |
| Section 8.01 Waiver; Cumulative Rights | 24 |
| Section 8.02 Press Releases and Announcements | 24 |
| Section 8.03 Severability | 25 |
| Section 8.04 Confidentiality | 25 |
| Section 8.05 Assignment | 26 |
| Section 8.06 Relationship between the Parties | 26 |
| Section 8.07 Notices | 26 |
| Section 8.08 Governing Law | 27 |
| Section 8.09 Arbitration | 27 |
| Section 8.10 Counterparts | 27 |
| Section 8.11 Amount and Method of Payment | 27 |
| Section 8.12 Expenses | 28 |
| Section 8.13 Modification | 28 |
| Section 8.14 No Strict Construction | 28 |
| Section 8.15 Entire Agreement | 28 |
| Section 8.16 Tax Matters | 29 |
| Section 8.17 Further Assurance; Necessary Actions | 29 |
| Section 8.18 Third Parties | 29 |
| Section 8.19 Reasonableness | 29 |
| Section 8.20 Time is of the Essence | 29 |
| Section 8.21 Simplified Agreement | 29 |
| Schedule 1 FORM OF SIMPLIFIED AGREEMENT | 32 |
| Schedule 2 FORM OF COMMERCIAL AGREEMENTS | 33 |
| Schedule 3 DISCLOSED ENCUMBRANCES | 34 |
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THIS SHARE PURCHASE AGREEMENT (this “Agreement”) is entered into on September 24, 2026 by and between:
| (A) | THE ELMET GROUP CO. |
| Registered Address: | 280 Fore St., Suite 301 Portland, Maine 04101 |
| Jurisdiction of incorporation: | Delaware |
(The Elmet Group Co. shall be referred to hereinafter as the “Buyer”).
and
| (B) | MASAN HORIZON COMPANY LIMITED |
| Registered Address: | 23 Le Duan, Sai Gon Ward, Ho Chi Minh City, Vietnam |
| Enterprise code: | 0309966871 |
| Jurisdiction of incorporation: | Vietnam |
(Masan Horizon Company Limited shall be referred to hereinafter as the “Seller”).
(The Buyer and the Seller shall be collectively referred to hereinafter as the “Parties” and each individually as a “Party”).
RECITALS
| (A) | Masan High-Tech Materials Corporation, enterprise registration number 0309966889, is a public company incorporated in Vietnam whose ordinary shares (“Shares”) are registered for trading on the UPCoM under the trading code MSR (the “Company”). |
| (B) | The Seller is the legal and beneficial owner of the Sale Shares (as defined below). |
| (C) | The Seller has agreed to sell, and the Buyer has agreed to purchase, the Sale Shares, by way of a secondary sale, for the Purchase Price, on and subject to the terms of this Agreement and the applicable Law and Trading Rules. |
NOW, THEREFORE, in consideration of the representations, warranties, mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, the Parties, intending to be legally bound, hereby agree as follows:
Article 1. DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions
In this Agreement (including the recitals above and the annexures, schedules and exhibits hereto), except where the context otherwise requires, (i) capitalized terms defined by inclusion in quotations and/or parenthesis have the meanings so ascribed; and (ii) the following words and expressions shall have the following meanings:
“Adjustment Period” has the meaning set forth in Section 3.05(g).
“Affiliate” means, with respect to a Person, any other Person Controlling, Controlled by, or under common Control with the first Person.
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“Agreed Form” means, in relation to any document, the form and substance of that document to be agreed and confirmed in writing (including by email) by the Parties.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“Authorization” includes any consent, authorization, permit, registration, filing, lodgment, agreement, notarization, certificate, permission, license, approval, authority or exemption from, by or with a Governmental Authority.
“BOD” means the board of directors of the Company, as constituted from time to time.
“Break-Fee” has the meaning set forth in Section 6.03(c).
“Broker” means the Buyer Broker or the Seller Broker, as the context requires.
“Business Day” means a business day (other than a Saturday or Sunday or other day) on which commercial banks are open for the transaction of business in Vietnam.
“Buyer” has the meaning set forth in the preamble to this Agreement.
“Buyer Broker” means Vietcap Securities Joint Stock Company, a securities company in Vietnam that is licensed by the SSC and registered as a member of the VSDC.
“Buyer Conditions Precedent” means the conditions to the Buyer’s obligation to deliver the Buyer Put-Through Instruction and to procure the entry, matching and confirmation of the put-through orders to effect the Put-Through Transaction or where applicable, to procure the effecting of the Off-band Transaction, on the Closing Date, set out in Section 3.01, as any such condition may be waived by the Buyer in writing in accordance with Section 3.01.
“Buyer Put-Through Instruction” means a binding irrevocable instruction delivered by the Buyer to the Buyer Broker to immediately deal with the Seller Broker to purchase the Sale Shares from the Seller at the Purchase Price per Share (unless otherwise agreed by the Parties) and procure that an amount equal to the Purchase Price is credited to the Seller’s Securities Account No. [**] opened at Vietcap Securities Joint Stock Company.
“Buyer Warranty” means each warranty of the Buyer contained in Section 7.02, and “Buyer Warranties” means all those warranties.
“Ceiling Price” means, in respect of the Shares on any Trading Day, the maximum price at which the Shares may be traded on UPCoM on that Trading Day, determined by reference to the applicable Reference Price on that Trading Day and the trading band applicable on UPCoM, in accordance with the applicable Trading Rules.
“Circular 96” means Circular No. 96/2020/TT-BTC dated November 16, 2020 of the Ministry of Finance providing guidelines on disclosure of information on securities market, as amended, supplemented or replaced from time to time, including, without limitation, by Circular No. 08/2026/TT-BTC dated February 3, 2026 of the Ministry of Finance.
“Closing” means the completion of the Transaction on the Closing Date, subject to and in accordance with the terms of this Agreement. For the avoidance of doubt, where the Transaction is conducted by way of a Put-Through Transaction, settlement of the Sale Shares and payment of the Purchase Price shall occur after the Closing Date on the Settlement Date through VSDC and the applicable trading, clearing and settlement system in accordance with Section 4.04 and the Trading Rules.
“Closing Date” means the First Intended Closing Date, except where Closing is deferred in accordance with Section 4.05, the Closing Date shall either be (i) the Trading Day on which the put-through orders for the Sale Shares are entered, matched and confirmed in accordance with Section 4.05(g), or (ii), in the case of an Off-band Transaction, on which the Off-band Transaction is effected under the VSDC Confirmation in accordance with Section 4.05(f).
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“Commercial Agreements” means (a) the External Volume Sale Agreement; (b) the External Volume Purchase Agreement; (c) the Internal Volume Sale Agreement; and (d) the Internal Volume Purchase Agreement, in each case in the Agreed Form appended to this Agreement at Schedule 2, to be entered into between Elmet Technologies LLC and MTC, in each case to be executed, held and released in accordance with Section 5.02, and each of which is a separate Transaction Document and a separate agreement between the parties to it; and “Commercial Agreement” means any of them.
“Company” has the meaning set forth in the recitals of this Agreement.
“Company Charter” means the charter of the Company, as amended from time to time.
“Conditions Precedent” means the Buyer Conditions Precedent, the Seller Conditions Precedent and the Regulatory Condition Precedent; and “Condition Precedent” means any of them.
“Confidential Business Information” means, with respect to a Person, the confidential or proprietary financial information, business or technical information, data, trade secrets, expertise, technique or know-how of such Person, including, but not limited to, research plans, product plans, products, services, customer information, customer lists, customer’s required specifications, market studies, details of inventions, processes, formulas, marketing plans, finances, commercial or other business information of such Person.
“Confidential Information” has the meaning set forth in Section 8.04(a).
“Control” means, with respect to any Person, (a) the possession, directly or indirectly, of power to direct or cause the direction of management and policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of such Person; (b) the ability, whether exercised or held directly or indirectly, to exercise more than 50% (fifty percent) of the votes at any general meeting of shareholders (or the closest equivalent governing body) of such Person; or (c) the ability to appoint more than 50% (fifty percent) of the directors (or the closest equivalent governing body) of such Person. The terms “Controlling”, “Controlled by” and similar words shall be construed accordingly.
“Cut-Off Time” means, in the case of the Put-Through Transaction, immediately before the first put-through order is entered, and in the case of the Off-band Transaction, immediately before the earlier of submission of the transfer request to the VSDC and transfer of the Purchase Price.
“Disclosed Encumbrances” means the Encumbrances set out in Schedule 3 (Disclosed Encumbrances).
“Encumbrance” means any mortgage, pledge, charge, hypothecation, assignment, lien, attachment, set-off or security interest of any kind whatsoever.
“First Intended Closing Date” has the meaning set forth in Section 4.01(a).
“Floor Price” means, in respect of the Shares on any Trading Day, the minimum price at which the Shares may be traded on UPCoM on that Trading Day, determined by reference to the applicable Reference Price on that Trading Day and the trading band applicable on UPCoM, in accordance with the applicable Trading Rules.
“Fundamental Warranties” means the (i) Seller Warranties set forth from Section 7.01(a) to Section 7.01(h), and (ii) the Buyer Warranties set forth from Section 7.02(a) to Section 7.02(f).
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“Funding Agreement” has the meaning set forth in Section 7.02(i).
“Governmental Authority” means any applicable government or governmental, semi- governmental, supranational, arbitral or judicial entity, court, agency or authority, and also includes any stock exchange, where applicable.
“HNX” means the Hanoi Stock Exchange.
“Law” or “Laws” means all applicable laws, statutes, rules, regulations, orders, writs, judgments, decrees, injunctions, administrative interpretations, directives, policies, guidelines and pronouncements of any Governmental Authority, for the time being in force.
“Law on Securities” means the Law on Securities No. 54/2019/QH14 adopted by the National Assembly of Vietnam on November 26, 2019.
“Long Stop Date” means the date falling thirty (30) Business Days after the Signing Date, provided that if Closing is deferred under Section 4.05 pending the Trading Band Approval, the Long Stop Date shall be automatically extended to the date falling thirty (30) Business Days after the First Intended Closing Date, or such later date as may result from any extension pursuant to Section 3.05(h) or as the Parties may agree in writing pursuant to Section 4.05(d); and provided further that, if the Trading Band Approval is granted and the Parties agree to proceed with the Off-band Transaction under Section 4.05, within the last five (5) Business Days before the Long Stop Date, the Long Stop Date shall be further extended by ten (10) Business Days to permit completion of the Off-band Transaction.
“Losses” means direct losses, damages, liabilities, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right or remedy under this Agreement; provided, however, that “Losses” shall not include punitive or exemplary damages, indirect or consequential losses, special damages, diminution in value, loss of opportunity, loss of goodwill, reputational loss or loss of profit, except to the extent finally awarded to a Third Party against the relevant Party.
“Material Adverse Effect” means an event or circumstance occurring after the Signing Date and beyond the reasonable control of the Parties, the Company and the Relevant Subsidiaries, including the destruction of or damage to any of their properties, plant or equipment, which directly results in the Company and the Relevant Subsidiaries, taken as a whole, being incapable of carrying on all or substantially all of their operating business, where that incapacity is enduring rather than temporary and is not reasonably capable of being overcome by available mitigation, recovery or alternative operating arrangements. No other event, circumstance or change constitutes a Material Adverse Effect, including any threatened event, any circumstance existing before the Signing Date or its subsequent discovery, any damage to or interruption of a single facility or production line while the business of the Company and the Relevant Subsidiaries, taken as a whole, remains capable of being carried on, any change in prices, exchange rates, costs, margins, demand, forecasts, market or economic conditions, in Law or in the financial condition, results, profitability or prospects of any Party or of the Company or any Relevant Subsidiary, any inability to obtain financing, any regulatory or licensing development, or any interruption of feedstock, utilities, transport or production that does not independently satisfy the foregoing requirements. The Buyer bears the burden of establishing each element of a Material Adverse Effect and shall first give the Seller written notice identifying the event, its effect on the operating business of the Company and the Relevant Subsidiaries and the basis on which the resulting incapacity is said to be enduring, together with supporting evidence; a notice or declaration of force majeure under any other agreement is not of itself evidence that a Material Adverse Effect has occurred. Neither the Seller nor the Company is obliged to repair, reinstate or reconstruct any property, plant or equipment, or to put in place any alternative operating arrangement, in order to prevent a Material Adverse Effect from occurring or continuing, and nothing in Section 3.03 requires it to do so.
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“MTC” means Masan Tungsten Limited Liability Company, a company incorporated in Vietnam, having the enterprise code 4601163743.
“Off-band Transaction” means the transfer of ownership of the Sale Shares from the Seller to the Buyer effected by VSDC outside the trading system of UPCoM in accordance with Section 4.05 and the Trading Rules.
“Parties” or “Party” has the meaning set forth in the preamble to this Agreement.
“Permitted Trading Band” means, in respect of the Shares on any Trading Day, the range from and including the Floor Price to and including the Ceiling Price applicable to the Shares on that Trading Day under the Trading Rules.
“Person” means any individual, firm, company, corporation, Governmental Authority, association, trust, joint venture, consortium, partnership or other entity (whether or not having separate legal personality).
“Purchase Price” means VND 3,231,025,000,000, being the aggregate consideration payable by the Buyer to the Seller for the Sale Shares, subject to amendment by agreement of the Parties.
“Purchase Price per Share” means an amount in VND equal to the Purchase Price divided by the number of Sale Shares.
“Put-Through Transaction” has the meaning set forth in Section 2.01.
“Reference Price” means, in respect of the Shares, such price per share determined in accordance with Article 20.4 of Decision No. 23/QĐ-HĐTV dated 18 March 2026 issued by the Vietnam Exchange (VNX).
“Regulatory Condition Precedent” has the meaning set forth in Section 3.05(a).
“Relevant Subsidiaries” means Masan Tungsten Limited Liability Company, having enterprise registration number 4601163743 and Nui Phao Mining Company Limited, having enterprise registration number 4600864513.
“Rules” has the meaning set forth in Section 8.09(a).
“Sale Shares” means 55,138,174 existing Shares legally and beneficially owned by the Seller and sold by the Seller to the Buyer pursuant to this Agreement, representing four point ninety-nine percent (4.99%) of the total issued and outstanding voting Shares of the Company as at the Signing Date.
“Securities Account” means a securities trading and depository account opened by a Party with its respective Broker and registered or maintained in accordance with applicable Law and VSDC rules.
“Seller” has the meaning set forth in the preamble to this Agreement.
“Seller Broker” means Vietcap Securities Joint Stock Company, a securities company in Vietnam that is licensed by the SSC and registered as a member of the VSDC.
“Seller Conditions Precedent” means the conditions to the Seller’s obligation to deliver the Seller Put-Through Instruction and to procure the entry, matching and confirmation of the put-through orders to effect the Put-Through Transaction or where applicable, to procure the effecting of the Off-band Transaction, on the Closing Date, set out in Section 3.02, as any such condition may be waived by the Seller in writing in accordance with Section 3.02.
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“Seller Put-Through Instruction” means a binding irrevocable instruction delivered by the Seller to the Seller Broker to immediately deal with the Buyer Broker to sell the Sale Shares at the Purchase Price per Share (unless otherwise agreed by the Parties) to the Buyer and procure that such Sale Shares are credited to the Securities Account of the Buyer opened at the Buyer Broker.
“Seller Warranty” means each warranty of the Seller contained in Section 7.01, and “Seller Warranties” means all those warranties.
“Settlement Date” means the Trading Day on which settlement of the Sale Shares and payment of the Purchase Price are completed through VSDC and the applicable trading, clearing and settlement system in accordance with the Trading Rules following the Closing Date, which, under the Trading Rules in effect as at the Signing Date, is expected to be the second Trading Day after the Closing Date, or such other Trading Day on which such settlement is actually completed in accordance with the Trading Rules.
“Shareholders’ Agreement” means the shareholders’ agreement between the Seller and the Buyer, entered into on or about the Signing Date.
“Shares” has the meaning set forth in the recitals of this Agreement.
“Signing Date” means the date of this Agreement.
“Simplified Agreement” has the meaning set forth in Section 8.21.
“SSC” means the State Securities Commission of Vietnam.
“Surviving Provisions” has the meaning set forth in Section 6.02(a).
“Taxes” means all taxes, levies, duties, imposts, charges and withholdings of any nature imposed by any Governmental Authority, together with any related interest, penalties and surcharges.
“Third Party” means any Person other than (i) the Seller or any of its Affiliates, and (ii) the Buyer or any of its Affiliates.
“Trading Band Approval” means the approval of the SSC for the Transaction to be implemented outside the trading system of UPCoM at the Purchase Price per Share notwithstanding that the Purchase Price per Share falls outside the Permitted Trading Band.
“Trading Day” means a day when UPCoM is open for trading.
“Trading Rules” means all applicable laws, regulations, rules, operating procedures and guidance of the SSC, VNX, HNX, UPCoM, VSDC and any other competent Governmental Authority applicable to the sale, purchase, trading, transfer and settlement of the Sale Shares.
“Transaction” means the sale by the Seller, and purchase by the Buyer, of the Sale Shares by way of a Put-Through Transaction or, where Section 4.05 applies, by way of an Off-band Transaction, in each case in accordance with this Agreement and the Trading Rules.
“Transaction Documents” means (a) this Agreement; (b) the Shareholders’ Agreement; (c) the Commercial Agreements, each in the Agreed Form appended to this Agreement at Schedule 2; (d) the Simplified Agreement; and (e) any other document designated as a “Transaction Document” in writing by the Parties; each of which, other than this Agreement, shall be in Agreed Form on or before the Signing Date and shall be executed at Closing, and each of which shall become effective in accordance with its terms, provided that no Commercial Agreement shall become effective before completion of settlement of the Sale Shares and payment of the Purchase Price; and “Transaction Document” means any one of them.
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“Tribunal” has the meaning set forth in Section 8.09(b).
“UPCoM” means the securities exchange market for unlisted public companies organized under the HNX, on which the Shares are registered for trading.
“VAS” means the Vietnamese Accounting Standards and accounting principles applicable to companies operating in Vietnam issued by the Ministry of Finance of Vietnam or any competent Governmental Authority from time to time.
“Vietnam” means the Socialist Republic of Vietnam.
“VND” or “Vietnamese Dong” means the lawful currency of Vietnam.
“VNX” means the Vietnam Exchange.
“VSDC” means the Vietnam Securities Depository and Clearing Corporation (or previously known as the Vietnam Securities Depository).
“VSDC Confirmation” has the meaning set forth in Section 4.05(f)(iv).
“Willful Breach” means a deliberate act or deliberate failure to act by a Party with actual knowledge that such act or failure to act constitutes a material breach of this Agreement and would reasonably be expected to prevent Closing.
Section 1.02 Interpretation
(a) The meanings of the terms defined in this Agreement are equally applicable to both the singular and plural forms of the terms. Except where the context otherwise requires, words importing the singular number include the plural number and vice versa.
(b) If there is a conflict between the meaning of a specific article and its heading, the contents of the article shall be applied to settle matters relating to the scope of such article. Headings are for convenience only and do not affect the interpretation of the applicable articles, sections or paragraphs of this Agreement.
(c) Reference herein to Schedules, Appendices, Articles, Sections, Clauses and paragraphs are, unless otherwise stated, references to schedules, appendices, articles, sections, clauses and paragraphs of this Agreement.
(d) The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision hereof.
(e) Reference to any document, instrument, or agreement shall (i) include all appendices, exhibits, schedules, and other attachments thereto, (ii) include all documents, instruments, or agreements issued or executed in replacement thereof, and (iii) mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, modified, and supplemented from time to time in accordance with the terms thereof and in effect at any given time.
(f) Unless specified otherwise, a reference to a time of day is a reference to Vietnam time.
(g) Reference to any Law, Trading Rule, administrative document, statute, law, decree, decision, or regulation shall be construed as a reference to such Law, administrative document, statute, law, decree, decision, or regulation as re-enacted, re-designated, amended, or extended from time to time.
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(h) References to “include” or “including” are to be construed without limitation.
(i) The words “directly or indirectly” mean directly, or indirectly through one (1) or more intermediary persons or through contractual or other legal arrangements, and “direct or indirect” have the correlative meanings.
(j) The word “or” shall not be exclusive.
(k) Each Commercial Agreement is a separate agreement between the parties to it. The Commercial Agreements and this Agreement are linked only as, and to the extent, expressly provided in this Agreement or in the relevant Commercial Agreement, and nothing in this Agreement shall be construed as causing the Commercial Agreements to constitute, together with each other or with this Agreement, a single agreement or a single arrangement.
Article 2. SALE AND PURCHASE OF SHARES
Section 2.01 Sale and Purchase of Shares
On and subject to the terms of this Agreement, the Seller agrees to sell to the Buyer, and the Buyer agrees to purchase from the Seller, the Sale Shares by way of a negotiated put-through transaction on UPCoM in accordance with the Trading Rules (the “Put-Through Transaction”) or where Section 4.05 applies, by way of an Off-band Transaction. The Sale Shares shall be sold free from any Encumbrance, together with all rights attaching to the Sale Shares including the right to receive all distributions and dividends declared, paid or made in respect of the Sale Shares, (a) in the case of the Put-Through Transaction, as from the Settlement Date, and (b) in the case of the Off-band Transaction, as from the Closing Date. For the avoidance of doubt, the Buyer is not entitled to the interim dividend for the 2026 financial year declared by the Company, the record date for which is 17 September 2026, or to any dividend or distribution declared before the applicable date specified in (a) or (b) of the immediately preceding sentence, notwithstanding that such distribution or dividend may be paid or made on or after such date.
Section 2.02 Payment of Purchase Price and Settlement Arrangements
(a) No later than five (5) Business Days prior to the First Intended Closing Date, the Buyer shall ensure that its Securities Account, securities trading code, indirect investment account, non-resident current account in USD, Broker arrangements and all other payment and settlement arrangements required under applicable Law and the Trading Rules are fully opened, obtained and operational. No later than three (3) Business Days prior to the First Intended Closing Date, the Buyer shall ensure that an amount in USD sufficient to fund the Purchase Price in full has been credited to the Buyer’s non-resident current account in USD with the licensed bank at which its indirect investment account is maintained. No later than one (1) Business Day prior to the First Intended Closing Date, the Buyer shall ensure that such amount has been converted into VND, credited to its indirect investment account and transferred to its account with the Buyer Broker, so that sufficient funds are available in that account to pay the Purchase Price in full and to settle the purchase of the Sale Shares in accordance with this Agreement and the Trading Rules. Before the Seller is required to enter or confirm its put-through order, the Buyer shall provide written confirmation that the full Purchase Price is funded and blocked for settlement. The Buyer shall provide evidence reasonably satisfactory to the Seller of each of the foregoing (which may include written confirmation from the Buyer Broker, bank remittance confirmation, account balance confirmation or such other documentary evidence as the Seller may reasonably require). Except as set forth in Section 2.02(b), the Buyer shall maintain that funding in place and blocked for settlement, and shall not withdraw, release, encumber or otherwise apply it for any other purpose, until completion of settlement of the purchase of the Sale Shares and payment of the Purchase Price.
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(b) In the event that the Closing Date is extended pursuant to Section 3.05(h) or Section 4.05 for a period longer than five (5) Business Days, Buyer shall not be required to maintain funding in place for a period longer than two (2) Business Days after the First Intended Closing Date. Upon notification of the date of the rescheduled Closing Date, Buyer shall comply with its obligations set forth in Section 2.02(a), with references to the First Intended Closing Date replaced by reference to the rescheduled Closing Date. If the rescheduled Closing Date is fewer than three (3) Business Days after the date on which such rescheduled Closing Date is determined, the Buyer shall comply with the funding requirement in the second sentence of Section 2.02(a) as soon as reasonably practicable following such determination and shall in all events comply with the conversion and transfer requirement in the third sentence of Section 2.02(a) no later than one (1) Business Day prior to the rescheduled Closing Date.
(c) The Seller shall not be required to enter, confirm or procure the entry or confirmation of any put-through order in respect of the Sale Shares unless and until the Buyer has complied with Section 2.02(a). Where the Buyer’s non-compliance results solely from a documented administrative delay of a Broker, VSDC or a licensed bank which the Buyer has not caused or contributed to, directly or indirectly, the Buyer shall have two (2) Business Days from the Seller’s notice, or from the time the relevant impediment is removed where its removal is not within the Buyer’s control, to cure, and that delay shall not of itself constitute a breach of this Agreement or give rise to the Break-Fee. This paragraph does not extend the Long Stop Date or prejudice either Party’s rights where a Condition Precedent remains unsatisfied at that date. Neither Party shall orchestrate or contribute to any delay, directly or indirectly, with a view to relying on this Section.
(d) In the case of a Put-Through Transaction, payment of the Purchase Price and delivery of the Sale Shares shall occur on the Settlement Date through the trading, clearing and settlement system applicable to UPCoM put-through transactions in accordance with the Trading Rules and Section 4.04. The Parties acknowledge that, under the Trading Rules in effect as at the Signing Date, settlement is expected to occur on the second Trading Day after the Closing Date. In the case of an Off-band Transaction, delivery of the Sale Shares and payment of the Purchase Price shall occur in accordance with Section 4.05.
(e) Each Party shall procure that its respective Broker takes all actions required to effect and settle the Transaction in accordance with this Agreement and the Trading Rules.
Article 3. CONDITIONS PRECEDENT
Section 3.01 Conditions to the Buyer’s Obligations
The Buyer’s obligation to deliver the Buyer Put-Through Instruction and to procure the entry, matching and confirmation of the put-through orders to effect the Put-Through Transaction or where applicable, to procure the effecting of the Off-band Transaction, on the Closing Date is subject only to the satisfaction, or waiver by the Buyer in writing, of the following conditions:
(a) the Buyer having received from the Seller a copy of duly passed resolutions of the Seller’s board of directors, members’ council or other competent governing body approving the Transaction and the entry into and performance by the Seller of the Transaction Documents to which it is a party;
(b) the Seller Warranties being true, accurate and not misleading as of the Signing Date and as of the Closing Date (as though such warranties were made at and as of such date), except for any Seller Warranty that expressly relates to a specific date, in which case such Seller Warranty shall be true, accurate and not misleading as of that date;
(c) the Transaction Documents (other than this Agreement) having been executed in the Agreed Form and, in the case of the Commercial Agreements, the executed counterparts being held in accordance with Section 5.02, and none of them having been terminated or repudiated, other than as a result of any breach or default by the Buyer or any of its Affiliates;
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(d) no Law, order, injunction, trading suspension, market suspension or other restriction having been issued or imposed by any Governmental Authority, UPCoM, HNX, VSDC, VNX or the SSC that prohibits the sale, purchase, trading or settlement of the Sale Shares in accordance with this Agreement and the Trading Rules;
(e) the Seller having performed and complied with all agreements, obligations and conditions contained in this Agreement that are required or contemplated to be performed or complied with by the Seller on or before Closing;
(f) no decision, order, prohibition, or injunction having been issued by any relevant Governmental Authority which would prohibit or constrain the consummation of the Transaction contemplated under this Agreement; and
(g) no Material Adverse Effect having occurred which is continuing immediately before the Cut-Off Time.
Section 3.02 Conditions to the Seller’s Obligations
The Seller’s obligation to deliver the Seller Put-Through Instruction and to procure the entry, matching and confirmation of the put-through orders to effect the Put-Through Transaction or where applicable, to procure the effecting of the Off-band Transaction, on the Closing Date is subject only to the satisfaction, or waiver by the Seller in writing, of the following conditions:
(a) the Seller having received from the Buyer a copy of duly passed resolutions of the Buyer’s board of directors or other competent governing body approving the Transaction and the entry into and performance by the Buyer of the Transaction Documents to which it is a party;
(b) the Buyer having provided evidence reasonably satisfactory to the Seller that it has opened and obtained the Securities Account at the Buyer Broker, a securities trading code with the VSDC, an indirect investment account at a licensed bank and a non-resident current account in USD at that bank required for payment of the Purchase Price and acquisition of the Sale Shares, in each case in accordance with this Agreement, applicable Law and the Trading Rules;
(c) the Buyer having provided evidence reasonably satisfactory to the Seller that the Buyer has funded its account with the Buyer Broker with an amount sufficient to pay the Purchase Price in full and to settle the purchase of the Sale Shares in accordance with this Agreement and the Trading Rules. Such evidence shall include written confirmation from the Buyer Broker or the Buyer’s custodian bank and a copy of the Funding Agreement, redacted as to information not relevant to the commitment and availability of the funding;
(d) the Buyer having provided to the Seller copies of, or evidence reasonably satisfactory to the Seller of, binding offtake arrangements between the Buyer or any of its Affiliates and [**] of tungsten concentrate contemplated by the Commercial Agreements, which are in full force and effect and which are sufficient to enable the relevant Affiliate of the Buyer to perform its supply obligations under the Commercial Agreements for their term;
(e) the Buyer Warranties being true, accurate and not misleading as of the Signing Date and as of the Closing Date (as though such warranties were made at and as of such date), except for any Buyer Warranty that expressly relates to a specific date, in which case such Buyer Warranty shall be true, accurate and not misleading as of that date;
(f) the Transaction Documents (other than this Agreement) having been executed in the Agreed Form and, in the case of the Commercial Agreements, the executed counterparts being held in accordance with Section 5.02, and none of them having been terminated or repudiated, other than as a result of any breach or default by the Seller or any of its Affiliates;
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(g) no Law, order, injunction, trading suspension, market suspension or other restriction having been issued or imposed by any Governmental Authority, UPCoM, HNX, VNX, VSDC or the SSC that prohibits the sale, purchase, trading or settlement of the Sale Shares in accordance with this Agreement and the Trading Rules;
(h) the Buyer having performed and complied with all agreements, obligations and conditions contained in this Agreement that are required or contemplated to be performed or complied with by the Buyer on or before Closing; and
(i) no decision, order, prohibition, or injunction having been issued by any relevant Governmental Authority which would prohibit or constrain the consummation of the Transaction contemplated under this Agreement.
Section 3.03 Responsibility for Satisfaction
(a) The Seller shall use commercially reasonable efforts to ensure the satisfaction of the conditions set out in Section 3.01 as soon as possible after the Signing Date and, in any event, prior to the scheduled First Intended Closing Date and, if the Closing is deferred under Section 4.05, immediately prior to the actual Closing Date.
(b) The Buyer shall use commercially reasonable efforts to ensure the satisfaction of the conditions set out in Section 3.02 as soon as possible after the Signing Date and, in any event, prior to the scheduled First Intended Closing Date and, if the Closing is deferred under Section 4.05, immediately prior to the actual Closing Date.
(c) Each Party shall promptly notify the other Party upon becoming aware that any condition to Closing has been satisfied or cannot reasonably be expected to be satisfied by the scheduled First Intended Closing Date.
Section 3.04 Cooperation
Each Party shall cooperate in good faith and provide all documents, information, instructions and assistance reasonably required by the other Party or its Broker to implement the Transaction as a Put-Through Transaction on UPCoM in accordance with the Trading Rules or where applicable, as an Off-Band Transaction.
Section 3.05 Regulatory Condition to Closing
(a) The obligation of each Party to proceed to Closing is subject to the satisfaction, at or prior to Closing, of the following regulatory condition precedent (the “Regulatory Condition Precedent”): to the extent the Purchase Price per Share falls outside the Permitted Trading Band on the scheduled First Intended Closing Date, the Trading Band Approval having been obtained.
(b) The Parties agree that the Regulatory Condition Precedent may not be waived by either Party, except where the Parties proceed with the Put-Through Transaction in accordance with Section 4.05(g).
(c) The Seller shall use its best reasonable efforts to ensure that the Regulatory Condition Precedent is satisfied at the earliest practicable date and in any event no later than the Long Stop Date. The Seller shall keep the Buyer promptly and sufficiently informed of the status of the approval process. The Parties acknowledge and agree that the Seller’s best reasonable efforts shall at all times be subject to the discretion and approval of the SSC and any other Governmental Authority, and the Parties shall work together in good faith to obtain the Trading Band Approval.
(d) The Seller undertakes to submit the application for the Trading Band Approval to the SSC as soon as reasonably practicable after the determination under Section 4.02(c). The Seller shall keep the Buyer promptly and sufficiently informed of the progress of the application and shall provide the Buyer with a copy of the application as submitted, redacted to the extent it contains information concerning the Seller or the Company that is not required for the Buyer’s purposes. The Buyer shall provide all documents, information, confirmations and assistance requested by the Seller, requested by the SSC or required under applicable Law for the purposes of that application, in each case promptly and at its own cost.
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(e) Subject to Section 3.05(b) and Section 3.05(g), if the Regulatory Condition Precedent has not been fulfilled on or before the Long Stop Date, either Party may terminate this Agreement by notice to the other Party, with the consequences set out in Section 6.02, for so long as the terminating Party did not deliberately take or omit to take, or cause to be taken or omitted to be taken, any action which led to the Regulatory Condition Precedent not being fulfilled on or before the Long Stop Date.
(f) The Seller’s obligations under Section 3.05(c) and Section 3.05(d) are obligations to use best reasonable efforts. Non-satisfaction of the Regulatory Condition Precedent, including any refusal, delay or failure by the SSC to grant the Trading Band Approval, shall not of itself constitute a failure by either Party to comply with its obligations under this Agreement. Whether any act or omission of a Party constitutes a Willful Breach is determined in accordance with the definition of that term, and nothing in this Section 3.05 deems any act or omission to be a Willful Breach.
(g) If the Trading Band Approval is refused, or if either Party reasonably considers that the Trading Band Approval is unlikely to be obtained, the Parties shall consult in good faith for a period not exceeding ten (10) Business Days to consider legally permissible alternatives for implementing the Transaction (the “Adjustment Period”). The Parties shall not be required to agree to any structure that would transfer, reallocate or replicate any part of the Purchase Price through any Commercial Agreement or other arrangement unless each Party is satisfied, acting reasonably and after consultation with its legal, tax and financial advisers, that such arrangement is lawful, enforceable, on arm’s length terms and does not create adverse legal, tax, accounting, securities law, disclosure or regulatory consequences for that Party or any of its Affiliates. No Party shall be in breach of this Agreement solely by declining to proceed with any such alternative arrangement.
(h) The Adjustment Period shall be extended by such further period as the Parties, acting reasonably and in good faith and having regard to the progress of the discussions contemplated by Section 3.05(g), may agree in writing, and the Long Stop Date shall be extended by the same period.
(i) Any adjustment agreed under Section 3.05(g) shall be documented by amendment to the relevant Commercial Agreements, executed simultaneously with Closing, shall be on arm’s length terms and shall be implemented in compliance with applicable Law and the Trading Rules. Neither Party is obliged to agree to any adjustment under Section 3.05(g), and the expiry of the Adjustment Period without agreement shall not of itself constitute a breach of this Agreement by either Party, subject to Section 3.05(f).
Article 4. CLOSING
Section 4.01 Closing Date
(a) Subject to satisfaction or waiver of the conditions set out in Article 3 (except for Section 3.05) and subject to Section 4.05, other than those Conditions Precedent that by their nature are to be satisfied at and/or by actions taken at the Closing without prejudice to the requirement that such Conditions Precedent be satisfied at Closing, Closing shall first be scheduled to take place on 1 October 2026, or such other date as the Parties may agree in writing (such date being the “First Intended Closing Date”). If Closing is deferred in accordance with Section 4.05, the Closing Date shall be the Trading Day on which Closing actually occurs in accordance with Section 4.05.
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(b) The Parties shall use commercially reasonable efforts to ensure that all conditions set out in Article 3 (except for Section 3.05) are satisfied or waived as soon as practicable following the Signing Date and in any event before the First Intended Closing Date, with a view to proceeding with Closing on that Date.
(c) If Closing does not occur on the First Intended Closing Date solely because the Purchase Price per Share is outside the Permitted Trading Band, Section 3.05 and Section 4.05 shall apply and, if Closing is deferred in accordance with Section 4.05, the Settlement Date shall be determined by reference to the actual Closing Date.
Section 4.02 Trading Band Test
(a) No later than 9:00 a.m. Vietnam time on the scheduled First Intended Closing Date, the Parties shall procure that the Seller Broker and the Buyer Broker confirm:
| (i) | the Purchase Price per Share on the First Intended Closing Date; |
| (ii) | the Floor Price and Ceiling Price applicable to the Shares on the First Intended Closing Date; and |
| (iii) | whether the Purchase Price per Share on the First Intended Closing Date is within the Permitted Trading Band. |
(b) If the Purchase Price per Share is within the Permitted Trading Band, the Parties shall proceed to Closing on that Trading Day at the Purchase Price per Share by way of a Put-Through Transaction on UPCoM in accordance with Section 4.03 and Section 4.04.
(c) If the Purchase Price per Share is below the Floor Price or above the Ceiling Price applicable to the Shares on that Trading Day, the Parties shall proceed in accordance with Section 4.05.
Section 4.03 Put-Through Transaction Closing Actions
On the Closing Date:
(a) The Parties shall procure that the Put-Through Transaction is effected as follows:
| (i) | the Buyer shall deliver, or procure that the Buyer Broker delivers, the Buyer Put-Through Instruction; |
| (ii) | the Seller shall deliver, or procure that the Seller Broker delivers, the Seller Put-Through Instruction; and |
| (iii) | the Seller and the Buyer shall procure that the Seller Broker and the Buyer Broker enter, match and confirm the put-through orders for the sale and purchase of the Sale Shares on UPCoM at the Purchase Price per Share in accordance with this Agreement and the Trading Rules; |
(b) the Buyer shall ensure sufficient funds are available on the Closing Date with the Buyer Broker to settle the Purchase Price in full in accordance with the Trading Rules; and
(c) the Seller shall maintain the Sale Shares in its Securities Account free from any Encumbrance and available for settlement in accordance with the Trading Rules.
(d) Each Party shall procure that each of its Affiliates that is a party to a Commercial Agreement has executed that Commercial Agreement in the Agreed Form and delivered the executed counterpart to counsel to be held and released in accordance with Section 5.02.
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Section 4.04 Put-Through Transaction Settlement
(a) Settlement of the Sale Shares and payment of the Purchase Price shall occur on the Settlement Date through VSDC and the applicable trading, clearing and settlement system in accordance with the Trading Rules.
(b) The Seller shall be deemed to have transferred, and the Buyer shall be deemed to have acquired, legal and beneficial ownership of the Sale Shares on the Settlement Date upon completion of settlement of the transfer of the Sale Shares to the Buyer through VSDC in accordance with the Trading Rules.
(c) The Seller shall receive the Purchase Price on the Settlement Date through the applicable clearing and settlement system in accordance with the Trading Rules.
(d) If settlement of the Sale Shares or payment of the Purchase Price is not completed on the Settlement Date as a result of a failure by a Party or its Broker to comply with this Agreement or the Trading Rules, that Party shall be in breach of this Agreement and shall take, or procure that its Broker takes, all actions necessary to complete settlement as soon as practicable, without prejudice to any other rights or remedies of the non-defaulting Party under this Agreement.
Section 4.05 Deferral and Off-band Transaction
(a) Upon the occurrence of the scenario contemplated under Section 4.02(c), the Parties shall, subject to Section 4.05(d), defer the Closing until the Transaction may be implemented either as (i) a Put-Through Transaction or (ii) subject to satisfaction of the Regulatory Condition Precedent in Section 3.05, an Off-band Transaction, in accordance with Section 4.05(e) to (g).
(b) A deferral under this Section 4.05 shall, by itself, not constitute a breach of this Agreement by either Party, provided that each Party continues to comply with its obligations under this Agreement and the Trading Rules.
(c) If the Closing is deferred in accordance with this Section 4.05, the provisions of this Agreement shall apply as if the date to which Closing is so deferred were the Closing Date. For the avoidance of doubt, if Closing is deferred in accordance with this Section 4.05, the Conditions Precedent must remain satisfied or waived as of the actual Closing Date.
(d) If Closing has not occurred within thirty (30) Business Days after the scheduled First Intended Closing Date solely due to regulatory timing, Trading Band Approval, VSDC processing, market procedures or other matters outside the Buyer’s reasonable control, the Parties shall discuss in good faith and may agree in writing to extend the deferral period for one or more additional periods of up to thirty (30) Business Days each, in which case the Long Stop Date shall be extended accordingly. During any such extension, the Parties shall continue to comply with their obligations under this Agreement and shall use commercially reasonable efforts to complete the Transaction as soon as practicable.
(e) Trading Band Approval. The Seller shall submit the application for the Trading Band Approval to the SSC in accordance with Section 3.05(d) and applicable Law. The application shall be made by the Seller alone and not jointly. The Buyer shall cooperate with the Seller and shall promptly provide all documents, information and confirmations requested by the Seller, requested by the SSC or required under applicable Law for that purpose. Subject to Section 3.05(f), neither Party warrants, or shall be obliged to procure, that the Trading Band Approval is granted, and a refusal or failure of the SSC to grant the Trading Band Approval shall not constitute a breach of this Agreement by either Party.
(f) Off-band Transaction. Within two (2) Business Days after the Trading Band Approval is obtained, the Parties shall implement the Off-band Transaction as follows:
| (i) | the Buyer shall ensure the funding required by Section 2.02(a) in place, and shall provide the Seller with written confirmation from the Buyer Broker or its custodian bank that the funds remain held and blocked to secure payment of the Purchase Price to the Seller. |
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| (ii) | the Seller shall procure that the Seller Broker or its custodian provides the Buyer with written confirmation that the Sale Shares are held in the Seller’s Securities Account and have been blocked for the purposes of the Off-band Transaction; |
| (iii) | the Seller shall submit a request to VSDC, and shall procure that the Seller Broker submits the Trading Band Approval, together with any other documents required by VSDC in the form reasonably acceptable to it, to effect the Off-band Transaction in respect of the Sale Shares, and the Buyer shall then transfer the Purchase Price in immediately available funds to the Seller’s bank account and provide the Seller with a copy of the confirmation from its bank that the transfer has been made only against the simultaneous or escrow-backed transfer of the Sale Shares, or upon receipt of irrevocable written confirmation from VSDC, the Seller Broker, or other relevant Person that all conditions for transfer of ownership of the Sale Shares to the Buyer have been satisfied and that such transfer will be completed upon payment; |
| (iv) | upon receipt of VSDC’s confirmation that it has effected the transfer of ownership of the Sale Shares from the Seller to the Buyer (the “VSDC Confirmation”), the Seller shall as soon as practicable provide a copy of it to the Buyer; and |
| (v) | where the Transaction is implemented as an Off-band Transaction, the Closing Date shall be the date of the VSDC Confirmation, and Section 4.03 and Section 4.04 shall apply mutatis mutandis to the extent consistent with this Section 4.05. |
(g) Reversion to a Put-Through Transaction. If, at any time before the Trading Band Approval is obtained, the Purchase Price per Share falls within the Permitted Trading Band, the Parties shall, unless any Party is legally prohibited, instead implement the Transaction as a put-through transaction on UPCoM in accordance with Section 4.03 and Section 4.04, and the Trading Band Approval shall cease to be required. To the extent required under applicable Law or by the SSC, the Seller shall promptly notify the SSC, withdraw or otherwise take any other action necessary in connection with the discontinuation of the application for the Trading Band Approval and the Buyer shall reasonably cooperate with the Seller and provide such documents as may be required under applicable Law or by the SSC for such purpose.
Article 5. POST-CLOSING COVENANTS
Section 5.01 Funding Agreement
From the date of this Agreement until Closing, the Buyer shall not amend, waive, rescind or terminate the Funding Agreement, or permit it to lapse, in each case in any manner that would reduce the funding available to the Buyer below the amount required to pay the Purchase Price in full or delay its availability beyond the Closing Date, without the prior written consent of the Seller. The Buyer shall notify the Seller promptly if the funding under the Funding Agreement ceases to be available in full, if any condition to its availability becomes incapable of satisfaction, or if the Buyer becomes aware that it may not be able to pay the Purchase Price on the Closing Date.
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Section 5.02 Execution of the Commercial Agreements
(a) Neither Party shall, and each Party shall procure that none of its Affiliates shall, date or deliver any Commercial Agreement, or permit any Commercial Agreement to become effective, before completion of settlement of the Sale Shares and payment of the Purchase Price. Each Party shall procure that each of its Affiliates that is a party to a Commercial Agreement executes that Commercial Agreement in the Agreed Form before the put-through orders are entered, and that the executed counterparts are held by counsel to the Parties undated and undelivered.
(b) Each Party shall procure that each of its Affiliates that is a party to a Commercial Agreement authorises the release, dating and delivery of its executed counterpart of that Commercial Agreement, without any further approval, immediately upon completion of settlement of the Sale Shares and payment of the Purchase Price.
(c) Each Commercial Agreement executed before Closing shall be held undated and undelivered and shall not be released, delivered or dated, and shall not become effective, unless and until completion of settlement of the Sale Shares and payment of the Purchase Price has occurred. If this Agreement is terminated before Closing, each Commercial Agreement so executed shall be of no force or effect and each Party shall procure that its Affiliates destroy or return all executed counterparts of it.
(d) For the avoidance of doubt, a failure by a Party to comply with this Section 5.02 is a failure by that Party to comply with its obligations under this Agreement for the purposes of Section 6.01 and Section 6.03.
Section 5.03 Post-Closing Obligations
Following the Closing Date, each Party shall comply with all disclosure, reporting and notification obligations applicable to it under Circular 96 and other applicable Law in connection with the Transaction. Without limiting the generality of the foregoing, the Seller shall make, submit and publish all required reports, notices and public disclosures in respect of the result of the sale of the Sale Shares within the time limits prescribed by Circular 96 and applicable Law.
Article 6. TERM AND TERMINATION
Section 6.01 Termination of Agreement
(a) After the Closing Date, this Agreement may be terminated only to the extent that the matched Put-Through Transaction or the Off-band Transaction may lawfully be cancelled or unwound under applicable Law and the Trading Rules.
(b) Before the Closing Date, this Agreement may be terminated as follows, provided that no Party may terminate, or rely on the failure of a Condition Precedent, to the extent that such failure was caused by that Party’s breach of this Agreement:
| (i) | by mutual written agreement of the Seller and the Buyer; |
| (ii) | by the Buyer by written notice to the Seller if: |
| (A) | any Buyer Condition Precedent set out in Section 3.01 has not been satisfied or waived by the Long Stop Date; |
| (B) | Closing does not occur on or before the Long Stop Date as a result of the Seller failing to comply with its obligations under this Agreement; |
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| (C) | the Seller is insolvent or a receiver, administrator, liquidator or custodian has been appointed over any material part of its assets; or |
| (D) | any Law, order, injunction, trading suspension, market suspension or other restriction is issued or imposed by any Governmental Authority, UPCoM, HNX, VNX, VSDC or the SSC that prohibits the sale, purchase, trading or settlement of the Sale Shares in accordance with this Agreement and the Trading Rules; |
| (iii) | by the Seller by written notice to the Buyer if: |
| (A) | any Seller Condition Precedent set out in Section 3.02 has not been satisfied or waived by the Long Stop Date; |
| (B) | Closing does not occur on or before the Long Stop Date as a result of the Buyer failing to comply with its obligations under this Agreement; |
| (C) | the Buyer is insolvent or a receiver, administrator, liquidator or custodian has been appointed over any material part of its assets; or |
| (D) | any Law, order, injunction, trading suspension, market suspension or other restriction is issued or imposed by any Governmental Authority, UPCoM, HNX, VNX, VSDC or the SSC that prohibits the sale, purchase, trading or settlement of the Sale Shares in accordance with this Agreement and the Trading Rules; or |
| (iv) | by either Party in accordance with Section 3.05(e) or Section 4.05(d). |
(c) Each Party undertakes to disclose promptly to the other Parties in writing any breach, matter, event, condition, circumstance, fact or omission of which it or he becomes aware that may give rise to a right of termination under this Section 6.01.
Section 6.02 Consequences of Termination of Agreement
In case of a termination of this Agreement pursuant to Section 6.01:
(a) no Party shall have any continuing obligations towards any other Party under this Agreement, other than obligations under Article 1 (Definitions and Interpretation), Article 6 (Term and Termination), Section 8.02 (Press Releases and Announcements), Section 8.04 (Confidentiality), Section 8.07 (Notices), Section 8.08 (Governing Law), Section 8.09 (Arbitration), Section 8.11 (Amount and Method of Payment), Section 8.12 (Expenses), Section 8.16 (Tax Matters) and any other provision which by its nature is intended to survive termination (the “Surviving Provisions”), which shall survive such termination and remain in full force and effect;
(b) no Party shall have any rights or claims against any other Party other than (i) accrued rights, obligations or liabilities for breaches of this Agreement which occurred prior to the termination; and (ii) claims, if any, under the Surviving Provisions, any such claim to survive the termination of this Agreement; and
(c) the Shareholders’ Agreement shall automatically terminate, or fail to become effective, without liability of any party under it, except for any provisions expressly stated to survive; and any Commercial Agreement that has not become effective shall not be released or become effective, and its executed counterparts shall be returned or destroyed in accordance with Section 5.02. The termination of any Commercial Agreement that has become effective is governed by its own terms.
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Section 6.03 Break-Fee
(a) If:
| (i) | all Buyer Conditions Precedent have been satisfied or waived in writing by the Buyer, other than any Buyer Condition Precedent which has not been satisfied as a result of the Seller’s failure to comply with its obligations under this Agreement; |
| (ii) | all Seller Conditions Precedent have been satisfied or waived in writing by the Seller; and |
| (iii) | Closing does not occur on or before the Long Stop Date solely as a direct result of the Seller failing to comply with its material obligations under this Agreement (consistent with, for the avoidance of doubt, Section 3.05(f)) and the Buyer has complied in all material respects with its obligations under this Agreement, |
then the Seller shall pay to the Buyer VND 646,205,000,000 as a break-fee within [**] the Long Stop Date.
(b) If:
| (i) | all Buyer Conditions Precedent have been satisfied or waived in writing by the Buyer; |
| (ii) | all Seller Conditions Precedent have been satisfied or waived in writing by the Seller, other than any Seller Condition Precedent which has not been satisfied as a result of the Buyer’s failure to comply with its obligations under this Agreement; and |
| (iii) | Closing does not occur on or before the Long Stop Date solely as a direct result of the Buyer’s failing to comply with its material obligations under this Agreement (consistent with, for the avoidance of doubt, Section 3.05(f)) and the Seller has complied in all material respects with its obligations under this Agreement, |
then the Buyer shall pay to the Seller VND 646,205,000,000 as a break-fee within [**] the Long Stop Date.
(c) No Break-Fee shall be payable by either Party in respect of a failure to complete the Transaction caused by VSDC, HNX, UPCoM, the SSC, any Governmental Authority, a market suspension or trading restriction, the refusal of the Trading Band Approval or a force majeure event, in each case outside the reasonable control of both Parties. For the avoidance of doubt, and subject to the relief expressly provided in Section 2.02(c), a failure or delay of a Party’s own Broker or bank solely attributable to the Party and the unavailability of the Buyer’s funding are not such events. No Break-Fee is payable solely by reason of the occurrence of a Material Adverse Effect or the non-satisfaction of the condition relating to it, without prejudice to any Break-Fee payable in respect of a breach of a separately expressed obligation.
(d) The amount payable under Section 6.03(a) or Section 6.03(b), as applicable, shall be the “Break-Fee”.
(e) Payment of the Break-Fee is intended by the Parties to be the sole recourse for each Party in the event of any circumstance set forth in Section 6.03(a) or Section 6.03(b).
(f) The Parties agree that the Break-Fee represents a genuine and reasonable pre-estimate of the loss that the non-defaulting Party would suffer, and if and to the extent that the Break-Fee is held to exceed the maximum amount recoverable under applicable Law, it shall be reduced to that maximum amount and the remainder of this Section shall continue in full force and effect.
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(g) No Break-Fee shall be payable by either Party if Closing does not occur, or this Agreement is terminated:
| (i) | by mutual written agreement of the Parties under Section 6.01(a); |
| (ii) | as a result of any Law, order, injunction, trading suspension, market suspension or other restriction issued or imposed by any Governmental Authority, UPCoM, HNX, VNX, VSDC or the SSC that prohibits the sale, purchase, trading or settlement of the Sale Shares in accordance with this Agreement and the Trading Rules; |
| (iii) | as a result of Closing being deferred because the Purchase Price per Share is outside the Permitted Trading Band in accordance with Section 4.05, unless the failure to proceed to Closing following such deferral is attributable to a breach by a Party of its obligations under this Agreement; |
| (iv) | as a result of the Regulatory Condition Precedent not being satisfied, including any refusal, delay or failure by the SSC to grant the Trading Band Approval, or on a termination under Section 3.05(e), in each case unless the non-satisfaction is attributable to a Willful Breach of Section 3.05 by the Party against whom the Break-Fee is claimed; |
| (v) | as a result of the failure of a Condition Precedent to be satisfied where such failure is not caused by a breach of this Agreement by the Party against whom the Break-Fee is claimed; or |
| (vi) | pursuant to Section 4.05(d), except where the relevant deferral or failure to proceed to Closing is caused by a breach by the Party against whom the Break-Fee is claimed. |
(h) Payment of the Break-Fee shall be without prejudice to any accrued rights, obligations or liabilities arising from any breach of this Agreement prior to termination, provided that the Party receiving the Break-Fee shall not be entitled to recover twice in respect of the same Losses, facts, matters or circumstances.
(i) The Parties acknowledge and agree that the Break-Fee represents a genuine pre-estimate of the loss likely to be suffered by the non-defaulting Party as a result of the failure of Closing to occur in the circumstances described in this Section 6.03, and is not intended to operate as a penalty.
Article 7. REPRESENTATIONS AND WARRANTIES
Section 7.01 Representations and Warranties of the Seller
The Seller represents and warrants to the Buyer that each of the following statements is true, accurate and not misleading as of the date of this Agreement and shall be deemed to be repeated immediately before Closing Date by reference to the facts and circumstances then existing as if references in the Seller Warranty to the date of this Agreement were references to the Closing Date (except for any Seller Warranty that expressly relates to a specific date, in which case such Seller Warranty shall be true, accurate and not misleading as of that date):
(a) Status and capacity. Each of the Seller, the Company and the Relevant Subsidiaries are duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation.
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(b) Authority. The Seller has full legal right, power and authority to enter into, deliver and perform this Agreement and each Transaction Document to which it is a party, and to consummate the Transaction.
(c) Corporate approvals. The Seller has obtained all corporate approvals required to authorize its entry into, delivery and performance of this Agreement and each Transaction Document to which it is a party.
(d) Binding obligations. This Agreement and each Transaction Document to which the Seller, the Company or a Relevant Subsidiary is a party, as applicable, constitute legal, valid and binding obligations of the Seller, the Company or such Relevant Subsidiary enforceable against the Seller, the Company or such Relevant Subsidiary in accordance with their terms, save that a Transaction Document that has not yet become effective will constitute such obligations upon its due execution, delivery and effectiveness in accordance with its terms.
(e) Title to Sale Shares. The Seller is the legal and beneficial owner of the Sale Shares and has full right and authority to sell and transfer the Sale Shares to the Buyer through a negotiated put-through transaction on UPCoM in accordance with the Trading Rules or through the Off-band Transaction, subject to completion of settlement through VSDC.
(f) No Encumbrances on equity interest. The Sale Shares are validly issued, fully paid and free from all Encumbrances. All equity interests held by the Company, directly or indirectly, in the Relevant Subsidiaries have been duly paid up and are free from all Encumbrances other than the Disclosed Encumbrances.
(g) No restrictions on transfer. There is no agreement, arrangement, option, pre-emption right, right of first refusal, restriction or other right that prevents or restricts the sale or transfer of the Sale Shares to the Buyer in accordance with this Agreement.
(h) No conflict. The execution, delivery and performance by the Seller or a Relevant Subsidiary of this Agreement and each Transaction Document, as applicable, to which it is a party, and the consummation of the Transaction, do not conflict with or breach: (i) the constitutional documents of the Seller; (ii) any Law applicable to the Seller or the Sale Shares; (iii) any order, judgment, injunction, decree or ruling binding on the Seller; or (iv) any agreement or instrument binding on the Seller, the Company, any Relevant Subsidiary or the Sale Shares.
(i) Disclosed Encumbrances: Schedule 3 contains a complete list of all Disclosed Encumbrances, and there are no other encumbrances, claims, liens or rights claimed against the Seller existing or asserted.
(j) No Encumbrances on key businesses. There are no Encumbrances, other than the Disclosed Encumbrances, over any assets or rights relating to the key businesses or operations of the Company or any Relevant Subsidiary, including, without limitation, any mining rights, mineral production or output, proceeds or receivables arising from the sale thereof, real properties or other material assets used in connection with such businesses or operations.
(k) Authorizations. The Seller as the parent company of the Company has, as at the Closing Date, made the pre-trade disclosure to the SSC, the HNX and the Company in respect of the sale of the Sale Shares required under Article 33.6 of Circular 96 and other applicable Law and the Trading Rules. The Seller has obtained all Authorizations required (other than the Trading Band Approval, if applicable) for the execution, delivery and performance of this Agreement and each Transaction Document to which it is a party and for the sale and settlement of the Sale Shares in accordance with the Trading Rules.
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(l) Securities Account and broker arrangements. The Seller maintains a valid Securities Account with the Seller Broker and has made all arrangements required for the Sale Shares to be traded and settled through VSDC and the applicable UPCoM trading, clearing and settlement system.
(m) No market restriction. The Seller is not subject to any trading suspension, transfer restriction, lock-up, order or other restriction that prevents the Seller from selling the Sale Shares in accordance with this Agreement and the Trading Rules.
(n) Licenses and permits. As at the Signing Date, the Company and each Relevant Subsidiary have obtained all licenses, permits, registrations, authorizations, approvals and exemptions necessary for the conduct of their respective businesses, all of which are valid and in full force and effect. After due inquiry, the Seller is not aware of any non-compliance with any of the foregoing or any circumstance that could reasonably be expected to result in the suspension, revocation, cancellation, non-renewal or other adverse modification of any such license, permit, registration, authorization, approval or exemption.
(o) Properties. As at the Signing Date, the Company and the Relevant Subsidiaries have valid, proper and undisputed rights to own, lease, use, occupy or otherwise exploit all real properties and buildings owned, leased, used, occupied or exploited by them, or intended to be so used or exploited, in connection with their respective businesses. All such rights are valid and in full force and effect. After due inquiry, Seller is not aware of any non-compliance with the foregoing or any circumstance that could reasonably be expected to result in the suspension, revocation, cancellation, termination, non-renewal or other impairment of any such right.
(p) Compliance. As at the Signing Date, Seller, after due inquiry, is not aware of any non-compliance by the Company or any Relevant Subsidiary with any statutory, contractual, financial or other obligation, nor any circumstance, which, individually or together with related matters, would reasonably be expected both to result in liability of the Company or any Relevant Subsidiaries of at least VND 129,500,000,000 and to have a material adverse effect on the business, assets or financial condition of the Company and the Relevant Subsidiaries taken as a whole.
(q) No insolvency. The Seller, the Company and the Relevant Subsidiaries are not insolvent and no receiver, administrator, liquidator, custodian or similar officer has been appointed over the Seller, the Company, a Relevant Subsidiary or any of their assets.
(r) No proceedings. There are no proceedings pending against the Seller that prevent the Seller from entering into or performing this Agreement or consummating the Transaction. At the Signing Date, there are no pending, threatened or ongoing disputes, claims, proceedings or investigations against the Company or any Relevant Subsidiary which, individually or together with related matters, would reasonably be expected both to result in liability of the Company or any Relevant Subsidiaries of at least VND 129,500,000,000 and to have a material adverse effect on the business, assets or financial condition of the Company and the Relevant Subsidiaries taken as a whole.
(s) Information. All information, including any documents, data, statements, confirmations and other materials provided or made available for the purpose of the due diligence investigation of the Company and the Relevant Subsidiaries, whether provided in writing, orally or otherwise, disclosed to the Buyer (or any of its representatives) by the Seller or any of their representatives was, when given, true and accurate in all material respects and not misleading in any material respect. After due inquiry, the Seller is not aware of any fact, matter or circumstances not disclosed to Buyer which renders any such information disclosed and/or provided to the Buyer or any of its Representatives to be untrue, inaccurate or misleading in any material respect.
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Section 7.02 Representations and Warranties of the Buyer
The Buyer represents and warrants to the Seller that each of the following statements is true, accurate and not misleading as of the date of this Agreement and is repeated immediately before Closing Date by reference to the facts and circumstances then existing as if references in the Buyer Warranty to the date of this Agreement were references to the Closing Date:
(a) Status and capacity. The Buyer is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation.
(b) Authority. The Buyer has full legal right, power and authority to enter into, deliver and perform this Agreement and each Transaction Document to which it is a party, and to consummate the Transaction.
(c) Corporate approvals. The Buyer has obtained all corporate approvals required to authorize its entry into, delivery and performance of this Agreement and each Transaction Document to which it is a party.
(d) Binding obligations. This Agreement and each Transaction Document to which the Buyer is a party constitute legal, valid and binding obligations of the Buyer, enforceable against the Buyer in accordance with their terms.
(e) No conflict. The execution, delivery and performance by the Buyer of this Agreement and each Transaction Document to which it is a party, and the consummation of the Transaction, do not conflict with or breach: (i) the constitutional documents of the Buyer; (ii) any Law applicable to the Buyer; (iii) any order, judgment, injunction, decree or ruling binding on the Buyer; or (iv) any agreement or instrument binding on the Buyer.
(f) Authorizations. The Buyer has obtained all Authorizations required (other than the Trading Band Approval, if applicable) for the execution, delivery and performance of this Agreement and each Transaction Document to which it is a party and for the purchase and settlement of the Sale Shares in accordance with the Trading Rules.
(g) Securities account and broker arrangements. The Buyer maintains a valid Securities Account with the Buyer Broker, a valid indirect investment account at a licensed bank, a non-resident current account in USD at that bank and other accounts required for payment of the Purchase Price and acquisition of the Sale Shares, a valid securities trading code with the VSDC, and has made all arrangements required for the Sale Shares to be traded and settled through VSDC and the applicable UPCoM trading, clearing and settlement system.
(h) Funds. On the Closing Date, the Buyer will have immediately available funds sufficient to pay the Purchase Price in full, to settle the purchase of the Sale Shares in accordance with this Agreement and the Trading Rules and to perform its payment obligations under the other Transaction Documents as they fall due. The funds used by the Buyer to pay the Purchase Price are legally available to the Buyer and do not derive from any illegal activity, money laundering, sanctions violation, terrorist financing or other unlawful source.
(i) Financing. The Buyer has duly executed and delivered the investment agreement dated September 11, 2026 with the United States Department of War (the “Funding Agreement”), a copy of which, redacted only as permitted by Section 3.02(c), has been provided to the Seller. The Funding Agreement is in full force and effect and has not been amended, waived, rescinded or terminated. The Buyer has, taking into account the funding received or committed under the Funding Agreement together with its own cash resources, sufficient immediately available funds to pay the Purchase Price in full and to settle the purchase of the Sale Shares in accordance with this Agreement. No condition to the availability or drawdown of the funding under the Funding Agreement on which the Buyer relies for that purpose remains unsatisfied, other than conditions within the Buyer’s control which the Buyer has no reason to believe will not be satisfied on or before the Closing Date. Nothing in the Funding Agreement conflicts with, or restricts the performance by the Buyer or any of its Affiliates of, any Transaction Document.
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(j) Investment requirements. The Buyer satisfies all requirements under applicable Law to acquire, hold and settle the Sale Shares and to perform its obligations under the Transaction Documents.
(k) No market restriction. The Buyer is not subject to any trading suspension, investment restriction, order or other restriction that prevents the Buyer from purchasing the Sale Shares in accordance with this Agreement and the Trading Rules.
(l) Investment decision. (i) The Buyer has sufficient knowledge and experience in financial, business, legal, tax and investment matters to evaluate the merits and risks of acquiring the Sale Shares; (ii) the Buyer has had the opportunity to consult its own legal, tax, financial, accounting and other advisers in relation to the Transaction; and (iii) the Buyer is capable of bearing the economic risk of its investment in the Sale Shares.
(m) No insolvency. The Buyer is not insolvent and no receiver, administrator, liquidator, custodian or similar officer has been appointed over the Buyer or any of its assets.
(n) Holdings in the Company. Neither the Buyer, any of its Affiliates nor any other Person whose holdings are required to be aggregated with those of the Buyer under applicable Law holds any Shares or any interest in any Shares as at the Signing Date. The Buyer shall not, and shall procure that no such Person shall, acquire any Shares or any interest in any Shares from the Signing Date until the Settlement Date otherwise than pursuant to this Agreement.
(o) No proceedings. There are no proceedings pending against the Buyer that prevent the Buyer from entering into or performing this Agreement or consummating the Transaction.
Section 7.03 Separate Representations and Warranties
Each representation and warranty in this Article 7 is separate and independent. No representation or warranty limits the scope or application of any other representation or warranty.
Section 7.04 Survival
(a) The Seller Warranties and the Buyer Warranties, other than the Fundamental Warranties, shall survive Closing for a period of eighteen (18) months after the Closing Date, and the Fundamental Warranties shall survive Closing for a period of sixty (60) months after the Closing Date, and no claim may be brought in respect of them after the expiry of the applicable period.
(b) The covenants and agreements of the Parties shall survive Closing in accordance with their respective terms.
(c) The aggregate liability of a Party for breach of Seller Warranties or Buyer Warranties, as applicable, other than Fundamental Warranties shall not exceed thirty percent (30%) of the Purchase Price. The aggregate liability of a Party for breach of all Seller Warranties or Buyer Warranties, as applicable, including Fundamental Warranties, shall not exceed the Purchase Price.
(d) A Party is not liable for any individual claim for breach of a warranty other than a Fundamental Warranty unless the amount of that claim is at least VND 25,900,000,000, and is not liable for any such claims unless the aggregate amount of all such claims meeting that threshold exceeds VND 129,500,000,000, in which case the Party is liable for the whole of that aggregate amount and not only the excess.
(e) Nothing in this Section 7.04 limits any liability for fraud.
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Article 8. MISCELLANEOUS
Section 8.01 Waiver; Cumulative Rights
The failure or delay of any Party to require performance by other Parties of any provision of this Agreement, except for the failure or delay of any Party to comply with notice deadlines as included in this Agreement, shall not affect its right to require performance of such provision, unless such performance has been waived by such Party in writing. Any right granted to a Party hereunder, or by the applicable Laws, shall be cumulative, and may be exercised in whole or in part as accrued from time to time.
Section 8.02 Press Releases and Announcements
No Party shall, and each Party shall procure that its Affiliates shall not, issue any press release or make any public announcement or statement relating to this Agreement, the Transaction, the investment by the Buyer in the Company or the commercial relationship between the Parties, or disclose the identity of the other Party or any of its Affiliates in connection with any of them, without the prior written approval of the other Party as to the fact, timing and contents of that release, announcement or statement; provided, however, that any Party may make any public disclosure, report, notice or announcement it believes in good faith is required by applicable Law, regulation, stock market rule or the Trading Rules, including any disclosure required under Section 5.02, in which case the disclosing Party shall use reasonable efforts, to the extent legally permissible and reasonably practicable, to provide the other Party with a copy of the proposed disclosure at least forty-eight (48) hours prior to making the disclosure (or, in the event compliance with such forty-eight (48) hour period is not reasonably practicable, as far in advance as reasonably practicable), to incorporate any reasonable comments of the other Party, to consult with and agree with the other Party the form, content and timing of the disclosure so far as legally permitted, to use reasonable efforts to obtain confidential treatment for any part of the information not required to be disclosed and for any commercially sensitive terms, including pricing, volumes, specifications and the identity of customers and to limit the disclosure to that portion of the information which the disclosing Party is advised is legally required to be disclosed. If any Party or any of its Affiliates is required to file, disclose or otherwise make publicly available this Agreement or any other Transaction Document, or any information concerning the Transaction, that Party shall, to the extent legally permitted and reasonably practicable: (i) notify the other Party as far in advance as reasonably practicable and provide it with a copy of the proposed filing or disclosure; (ii) give the other Party a reasonable opportunity, having regard to the applicable filing deadline, to identify information which it reasonably considers commercially sensitive; (iii) omit or redact, and seek confidential treatment for, all pricing terms and formulae, volumes, specifications, recovery rates, payment ratios, customer and supplier identities, mine and source information, technical and process information and other commercially sensitive information reasonably identified by the other Party, in each case to the fullest extent permitted by applicable Law and the relevant Governmental Authority or securities exchange; (iv) not voluntarily withdraw, waive or materially narrow any request for confidential treatment without the other Party’s prior written consent; (v) if any requested confidential treatment or redaction is rejected or questioned, notify and consult with the other Party before making the information publicly available and use reasonable efforts to preserve confidential treatment through any reasonably available amendment, reconsideration or similar process; and (vi) disclose no more information than is legally required. Limb (iii) does not require a Party to omit information where its external legal counsel advises that the information is legally required to be disclosed, and nothing in this Section requires a Party to fail to comply with a mandatory filing deadline.
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Section 8.03 Severability
Every provision, and each part thereof, contained in this Agreement shall be severable and distinct from the other provisions. If any provision is invalid, illegal or unenforceable under the applicable Laws, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected. To the extent permitted by applicable Laws, the Parties hereby waive any provision of applicable Laws which renders any provision of this Agreement prohibitive or unenforceable in any respect.
Section 8.04 Confidentiality
(a) During the term of this Agreement and for a period of five (5) years following termination, the Parties shall treat, and shall use commercially reasonable efforts to procure that their Affiliates and directors, officers, employees, agents, advisers and representatives shall treat, strictly confidential all non-public information received or obtained from the other Party as a result of entering into or performing this Agreement relating to (i) the existence and subject matter of this Agreement and (ii) the negotiations relating to this Agreement and (iii) the existence and terms of the Transaction, the investment by the Buyer in the Company and the commercial relationship between the Parties and their respective Affiliates, in each case including the identity of the other Party and its Affiliates and includes the existence and terms of this Agreement and of each other Transaction Document and the fact and content of the negotiations relating to them (“Confidential Information”). In so far as the Seller is concerned, Confidential Information shall also include the Confidential Business Information of or related to the Buyer or its Affiliates. In so far as the Buyer is concerned, Confidential Information shall also include non-public information (A) contained in the due diligence materials provided by (or on behalf of) the Seller to the Buyer prior to the date hereof in connection with the Buyer’s review of the Company and any other information provided to the Buyer prior to the Closing Date (pertaining to the business of the Company) which is not freely available in the public domain and (B) any Confidential Business Information of the Seller or its Affiliates provided to the Buyer pursuant to the terms of this Agreement.
(b) The obligation of confidentiality under Section 8.04(a) does not apply to:
| (i) | disclosure of Confidential Information that is or comes into the public domain or becomes generally available to the public other than through the act or omission of or as a result of disclosure by or at the direction of a Party or any of its directors, officers, employees, agents, advisers and representatives in breach of this Agreement; |
| (ii) | disclosure of Confidential Information that was within the receiving Party’s possession prior to its being furnished to the receiving party by or on behalf of the disclosing Party; |
| (iii) | disclosure, after giving prior notice to the other Parties to the extent practicable under the circumstances or permissible by applicable Law and subject to any practicable arrangements to protect confidentiality, to the extent required under the rules of any stock exchange or by applicable Law or governmental regulations or judicial process or generally accepted accounting principles applicable to any Party; |
| (iv) | disclosure of Confidential Information acquired independently by a Party from a Third Party source not obligated, to the knowledge of such Party, to the Party disclosing Confidential Information to keep such information confidential; |
| (v) | disclosure to any professional adviser of a Party who has been retained to advise in relation to the transactions contemplated by the Transaction Documents, in each case only where such Persons are under non-disclosure obligations (which are no less onerous than those contained in this Agreement); provided, however, that the disclosing Party remains liable to the other Party for any breach of any non-disclosure obligation with respect to the disclosed Confidential Information by the respective disclosee; |
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| (vi) | disclosure to existing and prospective shareholders, lenders, subscribers, financing sources, investors, underwriters, placement agents and transaction counterparties of a Party or their Affiliates, in each case only where such Persons are under non-disclosure obligations (which are no less onerous than those contained in this Agreement); provided however that the disclosing Party remains liable to the other Party for any breach of any non-disclosure obligation with respect to the disclosed Confidential Information by the respective disclosee; and |
| (vii) | disclosure with the prior written approval of the other Parties. |
(c) Each Party shall treat Confidential Information with no less care than that used to treat its own confidential information, which in no event shall be less than reasonable care.
Section 8.05 Assignment
The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Unless otherwise provided in this Agreement, none of the rights or obligations hereunder of any Party may be assigned or delegated to any Person without prior written consent of the other Party.
Section 8.06 Relationship between the Parties
None of the provisions of this Agreement shall be deemed to constitute a partnership or joint venture between the Parties. Save as specifically provided, neither of the Parties shall have any authority to bind the other Party in any way.
Section 8.07 Notices
(a) Any notice to be given under this Agreement shall be in writing and shall be delivered by personal delivery, registered mail, courier or email to the address or email address specified below (or to such other address or email address as the relevant Party may notify to the other Party by five (5) days’ prior written notice).
| To the Seller: | Masan
Horizon Company Limited
with a copy (which shall not constitute notice) to:
Dechert LLP
|
| To the Buyer: | The
Elmet Group Co. Suite 301 Portland, Maine 04101 USA
With a copy (which shall not constitute notice) to: |
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(b) Any notice shall be deemed to have been delivered: (i) if delivered personally, at the time of delivery; (ii) if sent by registered mail or courier, on the date shown as delivered by the relevant postal or courier service; and (iii) if sent by email, at the time of transmission, provided that no automated delivery failure or bounce-back message is received by the sender, and if sent after 5:00 p.m. Vietnam time or on a day that is not a Business Day, at 9:00 a.m. Vietnam time on the next Business Day.
Section 8.08 Governing Law
This Agreement shall be governed by and construed in accordance with the Laws of Vietnam, without regard to conflict of law principles.
Section 8.09 Arbitration
(a) Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof, shall be referred to and finally resolved by arbitration at the Vietnam International Arbitration Centre (VIAC) in accordance with its in-force Arbitration Rules (“Rules”), which Rules are deemed to be incorporated by reference into and as amended by this Section 8.09. Nothing in this Section shall prevent any Party from seeking interim, conservatory or injunctive relief from any court of competent jurisdiction before constitution of the Tribunal or where necessary to preserve rights pending determination of the dispute.
(b) Any arbitration shall be conducted by three (3) arbitrators (the “Tribunal”). One arbitrator shall be nominated by the claimant(s) and one by the respondent(s) and the two party nominated arbitrators shall jointly nominate the third, who shall serve as chairman.
(c) The seat of arbitration shall be in Vietnam. The language of arbitration proceedings shall be English.
(d) Service of any notice of arbitration made pursuant to this Section 8.09 shall be in accordance with the Rules at the postal address given for the sending of notices under this Agreement at Section 8.07 and in a manner provided for in that Section.
(e) The award of the Tribunal shall be final and binding on the Parties (i.e. not subject to appeal).
Section 8.10 Counterparts
This Agreement shall be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. Any Party may execute this Agreement by signing one (1) or more of such counterparts. Delivery of an executed counterpart of the signature page to this Agreement by electronic mail in portable format (“.pdf”) shall be effective as delivery of a manually executed counterpart of this Agreement and shall, subject to applicable Law, constitute, and be sufficient evidence of, due execution of this Agreement by such Party.
Section 8.11 Amount and Method of Payment
(a) Save as otherwise provided in this Agreement, including payment of the Purchase Price through the applicable trading, clearing and settlement system in accordance with the Trading Rules, any payment made by any Party under this Agreement shall be made in full without any set-off, restriction, condition or deduction or for or on account of any counterclaim, except for any deduction or withholding required by applicable Law.
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(b) Except for payment of the Purchase Price through the applicable trading, clearing and settlement system in accordance with the Trading Rules, wherever in this Agreement provision is made for the payment by one Party to the other, such payment shall be effected by crediting for same day value the account specified by the payee to the payer reasonably in advance and in sufficient detail to enable payment by telegraphic or other electronic means to be effected on or before the due date for payment.
Section 8.12 Expenses
Except as expressly provided herein, each Party shall bear its own fees and expenses in connection with the preparation, execution and performance of this Agreement and the transactions contemplated hereby, including, without limitation, all fees and expenses of agents, representatives, counsel and accountants.
Section 8.13 Modification
This Agreement may not be amended, modified or supplemented except by a written instrument executed by each of the Parties.
Section 8.14 No Strict Construction
The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by all Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
Section 8.15 Entire Agreement
This Agreement and the other Transaction Documents constitute the entire agreement of the parties with respect to the subject matter herein and supersede all prior understandings, negotiations, agreements, representations and undertakings between the Seller and its Affiliates, on the one hand, and the Buyer and its Affiliates, on the other hand, whether written or oral, to the extent they relate in any way to the subject matter hereof or thereof. Without limiting the generality of the foregoing, it is agreed that:
(a) no Party has relied on any statement or representation which is not expressly incorporated in this Agreement or another Transaction Document and no Party shall have any claim or remedy in respect of any statement, representation, warranty or undertaking made by or on behalf of the other Party in relation to the Transaction which is not expressly set out in this Agreement or another Transaction Document;
(b) any terms or conditions implied by Law in any jurisdiction in relation to the Transaction are excluded to the fullest extent permitted by law or, if incapable of exclusion, any rights or remedies in relation to them are irrevocably waived;
(c) save as otherwise expressly provided in this Agreement, the only right or remedy of a Party in relation to any breach of provision of this Agreement shall be as set forth herein and in accordance with the terms of this Agreement; and
(d) save as otherwise expressly provided in this Agreement or any other Transaction Document, no Party shall owe any duty of care or have any liability in tort with respect to performance of or obligation set forth under this Agreement to the other Party; provided, that nothing in this Section 8.15 shall apply to or otherwise restrict tort claims under applicable Law based on fraud.
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Section 8.16 Tax Matters
(a) Each Party shall be responsible for its own Taxes arising in connection with the negotiation, execution, delivery and performance of this Agreement and the Transaction, except as otherwise expressly provided in this Agreement or required by applicable Law.
(b) The Seller shall be responsible for any Vietnamese income tax, capital gains tax, securities transfer tax or similar tax imposed on the Seller in respect of the sale of the Sale Shares. The Buyer shall be responsible for any Taxes, fees or charges imposed on the Buyer in respect of its acquisition, holding or settlement of the Sale Shares.
(c) Any payment under this Agreement shall be subject to any deduction or withholding required by applicable Law. If any Party is required by applicable Law to make a deduction or withholding from any payment, that Party shall be entitled to make such deduction or withholding and shall pay the deducted or withheld amount to the relevant Governmental Authority in accordance with applicable Law.
(d) The Parties shall reasonably cooperate to provide documents and information reasonably required to determine, reduce or administer any applicable Tax withholding, deduction, filing or payment obligation in connection with the Transaction.
Section 8.17 Further Assurance; Necessary Actions
To the extent it is within its powers, each Party agrees to perform (or procure the performance of), at its own cost, unless otherwise agreed, all further acts and things (including the execution and delivery of, or procuring the execution and delivery of, all deeds and documents that may be reasonably required by law or as may be reasonably necessary, required or advisable, procuring the convening of all meetings, the giving of all reasonably necessary waivers and consents and the passing of all resolutions and otherwise exercising all powers and rights available to them) reasonably required to implement and give effect to this Agreement and the Transactions related hereto.
Section 8.18 Third Parties
This Agreement does not create any rights, claims or benefits to any Person that is not a Party hereto and does not create or establish any Third Party beneficiary hereto.
Section 8.19 Reasonableness
Each Party confirms it has had the opportunity to receive independent legal advice relating to all the matters provided for in this Agreement and agrees that the provisions of this Agreement are fair and reasonable.
Section 8.20 Time is of the Essence
Time shall be of the essence of this Agreement as regards any dates, times and periods mentioned and as regards any dates, times and periods which may be substituted for them in accordance with this Agreement or by agreement in writing between the Parties.
Section 8.21 Simplified Agreement
The Parties hereby agree that for the purposes of any regulatory filing with any Governmental Authority in connection with this Agreement and the Transaction contemplated hereunder, the Parties may prepare, execute and deliver a simplified share purchase agreement in the form provided in Schedule 1 (the “Simplified Agreement”), provided that this Agreement will prevail over such Simplified Agreement in the event of any discrepancy.
[Signature page follows.]
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IN WITNESS WHEREOF, the Parties, acting through their duly authorized representatives, have caused this agreement to be signed in their respective names as of the date first above written.
MASAN HORIZON COMPANY LIMITED
| By: | /s/ Michael Hung Nguyen | |
| Name: | Michael Hung Nguyen | |
| Title: | Authorised Signatory |
[Signature Page – Share Purchase Agreement]
30
THE ELMET GROUP CO.
| By: | /s/ Peter V. Anania | |
| Name: | Peter V. Anania | |
| Title: | Chairman and Chief Executive Officer |
[Signature Page – Share Purchase Agreement]
31
Schedule
1
FORM OF SIMPLIFIED AGREEMENT
32
Schedule
2
FORM OF COMMERCIAL AGREEMENTS
33
Schedule
3
DISCLOSED ENCUMBRANCES
34
Exhibit 10.2
SHAREHOLDERS’ AGREEMENT
DATED SEPTEMBER 24, 2026
between
THE ELMET GROUP CO.
as the Investor and
MASAN HORIZON COMPANY LIMITED
as the Major Shareholder
TABLE OF CONTENTS
| Page | ||||
| Article 1. DEFINITIONS AND INTERPRETATION | 2 | |||
| Section 1.01 | Definitions | 2 | ||
| Section 1.02 | Interpretation | 5 | ||
| Article 2. GOVERNANCE AND MANAGEMENT | 5 | |||
| Section 2.01 | Director Nominated by the Investor | 5 | ||
| Article 3. DIVIDEND POLICY | 6 | |||
| Section 3.01 | Dividend Policy | 6 | ||
| Section 3.02 | Voting in relation to Dividend Policy | 7 | ||
| Article 4. TRANSFER RESTRICTIONS | 7 | |||
| Section 4.01 | Investor Lock-up | 7 | ||
| Section 4.02 | Restricted Entities | 8 | ||
| Section 4.03 | Exceptions to the Lock-up | 9 | ||
| Section 4.04 | Non-compliance Transfer | 9 | ||
| Section 4.05 | Subsequent Strategic Transactions | 9 | ||
| Article 5. RESTRICTED TRANSACTIONS; RIGHT TO MATCH; RIGHT TO SELL | 10 | |||
| Section 5.01 | Right to Match | 10 | ||
| Section 5.02 | Block Trade Mechanics | 11 | ||
| Section 5.03 | Right to Sell | 12 | ||
| Article 6. PRE-EMPTION RIGHT | 12 | |||
| Section 6.01 | Pre-emption Right | 12 | ||
| Section 6.02 | Exempted New Issues | 13 | ||
| Section 6.03 | Pre-emption Right Procedures | 13 | ||
| Section 6.04 | Residuary Portion | 14 | ||
| Section 6.05 | Regulatory Qualification | 14 | ||
| Article 7. INVESTOR’S RIGHTS | 14 | |||
| Section 7.01 | Information Rights of the Investor | 14 | ||
| Section 7.02 | Material Non-Public Information | 15 | ||
| Section 7.03 | Other Rights | 15 | ||
| Article 8. OFFTAKE RIGHTS COMMITTEE | 16 | |||
| Section 8.01 | Establishment and Composition | 16 | ||
| Section 8.02 | Remit | 16 | ||
| Section 8.03 | Facilitation | 16 | ||
| Article 9. BISMUTH: EXCLUSIVE NEGOTIATION RIGHT | 17 | |||
| Section 9.01 | Trigger Date | 17 | ||
| Section 9.02 | Bismuth Negotiation Exclusivity Period | 17 | ||
| Section 9.03 | Exclusive Right to Negotiate | 17 | ||
| Section 9.04 | Bismuth Facility | 18 | ||
| Section 9.05 | Bismuth Offtake | 18 | ||
| Section 9.06 | Sole Exclusivity | 18 | ||
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| Article 10. JOINT COLLABORATION | 18 | |||
| Section 10.01 | Joint Market Development and Other Collaboration | 18 | ||
| Section 10.02 | Joint Trading Business | 18 | ||
| Article 11. OBLIGATIONS AND ACKNOWLEDGEMENTS | 18 | |||
| Section 11.01 | Compliance with the Transaction Documents | 18 | ||
| Section 11.02 | Company Charter | 18 | ||
| Section 11.03 | Listing and Corporate Transactions | 18 | ||
| Section 11.04 | Investor Rights | 19 | ||
| Section 11.05 | Major Shareholder Obligations | 19 | ||
| Section 11.06 | Divestment Restrictions | 19 | ||
| Article 12. REPRESENTATIONS AND WARRANTIES | 20 | |||
| Section 12.01 | Representations and Warranties of each Party | 20 | ||
| Article 13. EFFECTIVENESS, TERM AND TERMINATION | 21 | |||
| Section 13.01 | Effectiveness | 21 | ||
| Section 13.02 | Termination | 21 | ||
| Section 13.03 | Effect of Termination | 21 | ||
| Article 14. MISCELLANEOUS | 22 | |||
| Section 14.01 | Waiver; Cumulative Rights | 22 | ||
| Section 14.02 | Press Releases and Announcements | 22 | ||
| Section 14.03 | Severability | 22 | ||
| Section 14.04 | Confidentiality | 23 | ||
| Section 14.05 | Assignment | 24 | ||
| Section 14.06 | Relationship between the Parties | 24 | ||
| Section 14.07 | Notices | 24 | ||
| Section 14.08 | Governing Law | 24 | ||
| Section 14.09 | Arbitration | 24 | ||
| Section 14.10 | Counterparts | 25 | ||
| Section 14.11 | Expenses | 25 | ||
| Section 14.12 | Modification | 25 | ||
| Section 14.13 | No Strict Construction | 25 | ||
| Section 14.14 | Entire Agreement | 25 | ||
| Section 14.15 | Compliance with Vietnamese Law | 26 | ||
| Section 14.16 | Further Assurance; Necessary Actions | 26 | ||
| Section 14.17 | Third Parties | 26 | ||
| Section 14.18 | Reasonableness | 26 | ||
| Section 14.19 | Time is of the Essence | 26 | ||
| SCHEDULE 1 FORM OF ADHERENCE AGREEMENT | 29 | |||
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THIS SHAREHOLDERS’ AGREEMENT (this “Agreement”) is entered into on September 24, 2026 by and between:
| (A) | THE ELMET GROUP CO. |
| Registered Address: | 280 Fore St., Suite 301, Portland, Maine 04101 |
| Jurisdiction of incorporation: | Delaware |
(The Elmet Group Co., together with its Permitted Transferees, shall be referred to hereinafter as the “Investor”).
and
| (B) | MASAN HORIZON COMPANY LIMITED |
| Registered Address: | 23 Le Duan, Sai Gon Ward, Ho Chi Minh City, Vietnam |
| Enterprise code: | 0309966871 |
| Jurisdiction of incorporation: | Vietnam |
(Masan Horizon Company Limited, together with its Permitted Transferees, shall be referred to hereinafter as the “Major Shareholder”).
(The Investor and the Major Shareholder shall be collectively referred to hereinafter as the “Parties” and each individually as a “Party”).
RECITALS
| (A) | Masan High-Tech Materials Corporation, enterprise code 0309966889 (the “Company”), is a public company incorporated in Vietnam whose ordinary shares (“Shares”) are registered for trading on the UPCoM under the trading code MSR. |
| (B) | The Major Shareholder is the Controlling shareholder of the Company. |
| (C) | Pursuant to the share purchase agreement between the Major Shareholder and the Investor dated on or about the date of this Agreement (the “SPA”), the Major Shareholder has agreed to sell, and the Investor has agreed to purchase, the Sale Shares. |
| (D) | Elmet Technologies LLC, an Affiliate of the Investor, and Masan Tungsten Limited Liability Company, a company incorporated in Vietnam (“MTC”) having the enterprise code 4601163743, are to enter into the Commercial Agreements at Closing. |
| (E) | The Parties are entering into this Agreement for the purpose of recording the terms and conditions regulating their relationship as shareholders of the Company and their mutual rights and obligations. |
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NOW, THEREFORE, in consideration of the representations, warranties, mutual covenants and agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged by the Parties, the Parties, intending to be legally bound, hereby agree as follows:
Article 1. DEFINITIONS AND INTERPRETATION
Section 1.01 Definitions
In this Agreement, capitalised terms defined in the SPA have the meanings given to them in the SPA unless otherwise defined below, and the following words and expressions have the following meanings:
“Adherence Agreement” means an adherence agreement substantially in the form set out in Schedule 1.
“Affiliate” means, with respect to a Person, any other Person Controlling, Controlled by, or under common Control with the first Person.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“Bismuth Negotiation Exclusivity Period” has the meaning set forth in Section 9.02.
“Block Trade” means a sale of Shares, arranged, managed and executed by one or more licensed securities companies, investment banks or other financial institutions duly authorised to act as underwriter, arranger or placement agent for such sale, representing at least ten percent (10%) of the total issued and outstanding Shares.
“BOD” means the board of directors of the Company, as constituted from time to time.
“Closing” means Closing under the SPA, and “Closing Date” means the Closing Date under the SPA.
“Company” has the meaning set forth in Recital (A).
“Company Charter” means the charter of the Company, as amended from time to time.
“Confidential Information” has the meaning set forth in Section 14.04(a).
“Down Round” means an issue of New Securities for cash consideration at a price per Share lower than the Purchase Price per Share, provided that the Purchase Price per Share shall be equitably adjusted to reflect any share split, share dividend, subdivision, combination, reclassification, recapitalization or other similar event affecting the number or denomination of Shares, and any cash dividend or other distribution to shareholders, in each case occurring after the date on which the Purchase Price per Share was originally determined, in each case to the extent necessary to preserve the economic equivalence of the original Purchase Price per Share for purposes of this comparison.
“Equity Securities” means the Shares and any other securities of the Company carrying a right, option or warrant to subscribe for, convert into or otherwise acquire Shares.
“Financial Year” means the financial year of the Company, ending on 31 December in each year.
“Investor” has the meaning set forth in the preamble to this Agreement.
“Investor Nominee” has the meaning set forth in Section 2.01(a).
“Investor Rights” has the meaning set forth in Section 11.04(a).
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“Investor Shares” means the Sale Shares acquired by the Investor from the Major Shareholder pursuant to the SPA, together with any Equity Securities issued, distributed or otherwise arising in respect of, in exchange for, or in substitution for such Sale Shares (including, without limitation, by way of share dividend, bonus issue, stock split, subdivision, consolidation, conversion, exchange, recapitalisation or other similar corporate action), in each case held by the Investor or its Permitted Transferees from time to time; provided that, for the avoidance of doubt, “Investor Shares” shall not include any Equity Securities acquired by the Investor or any Permitted Transferee through purchases on the open market or otherwise from any person other than the Major Shareholder, except to the extent such Equity Securities are issued or distributed pursuant to a corporate action of the type described above in respect of the Sale Shares.
“Law on Securities” means Law No. 54/2019/QH14 (National Assembly, November 26, 2019), as amended from time to time.
“Lock-up Period” has the meaning set forth in Section 4.01(a).
“Major Shareholder” has the meaning set forth in the preamble to this Agreement.
“Match Acceptance Date” has the meaning set forth in Section 5.01(e).
“Match Completion Date” has the meaning set forth in Section 5.01(e).
“Match Notice” has the meaning set forth in Section 5.01(c).
“Match Period” has the meaning set forth in Section 5.01(c).
“MNPI” means information that constitutes inside information within the meaning of Article 4.44 of the Law on Securities, or material non-public information within the meaning of the securities laws of the United States.
“MTC” has the meaning set forth in Recital (D).
“New Issuance Acceptance Notice” has the meaning set forth in Section 6.03(c).
“New Issuance Notice” has the meaning set forth in Section 6.03(a).
“New Issuance Offer Period” has the meaning set forth in Section 6.03(b).
“New Securities” means any Equity Securities, or any debt securities convertible into Equity Securities, proposed to be issued by the Company.
“Observer” has the meaning set forth in Section 2.01(b).
“Observer Rights” has the meaning set forth in Section 2.01(b).
“Offtake Rights Committee” has the meaning set forth in Section 8.01(a).
“Party” or “Parties” has the meaning set forth in the preamble to this Agreement.
“Permitted Transferee” means, in respect of a Party, any Affiliate of that Party which has first delivered a duly executed Adherence Agreement, provided that the transferring Party shall procure that if that Affiliate at any time ceases to be an Affiliate of that Party, it shall first Transfer all of its Equity Securities back to that Party or to another Permitted Transferee of that Party.
“Pre-emption Right” has the meaning set forth in Section 6.01(a).
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“Relevant Percentage” means, in respect of a Party at any time, the number of Shares held by that Party and its Permitted Transferees expressed as a percentage of the total issued and outstanding Shares at that time.
“Restricted Entity” means any Restricted Person and any Person that is located, organised, incorporated or principally based in, or is a national, citizen or resident of, or is Controlled by any Person from such jurisdiction as the Parties may agree in writing.
“Restricted Person” means any Person that, in relation to a Sanctioned Jurisdiction, is (a) organised, incorporated, located or principally based in a Sanctioned Jurisdiction; (b) a national, citizen or resident of a Sanctioned Jurisdiction; (c) the government, or any agency or instrumentality of the government, of a Sanctioned Jurisdiction; (d) listed on, or thirty-five percent (35%) or more owned, directly or indirectly, individually or in the aggregate, or otherwise Controlled by, one or more Persons listed on, any Sanctions List; or (e) acting for or on behalf of any of the foregoing.
“Restricted Transaction” means (a) any transaction, other than a Block Trade, negotiated by the Company or the Major Shareholder with a Restricted Entity that would result in a Restricted Entity holding at least ten percent (10%) of the issued and outstanding Shares (a “Strategic Trade”); or (b) any proposed Block Trade by the Major Shareholder to a Restricted Entity that would result in a Restricted Entity holding at least ten percent (10%) of the issued and outstanding Shares, in the case of paragraph (b) only if that transaction is proposed to occur before the Uplisting and while the Investor remains subject to the Lock-up Period. Paragraphs (a) and (b) are mutually exclusive, and no transaction shall be both a Strategic Trade and a Block Trade for the purposes of this Agreement.
“Restricted Transaction Notice” has the meaning set forth in Section 5.01(b).
“Retention Threshold” means the Investor and its Permitted Transferees holding, in aggregate, Investor Shares representing at least eighty percent (80%) of the number of Sale Shares acquired by the Investor from the Major Shareholder pursuant to the SPA, as that number may be adjusted to reflect any share dividend, bonus issue, stock split, subdivision, consolidation, conversion, exchange, recapitalisation or other similar corporate action affecting the Shares after the Closing Date.
“Rules” has the meaning set forth in Section 14.09(a).
“Sanctioned Jurisdiction” means any country or territory that is the subject of comprehensive country-wide or territory-wide economic or trade sanctions administered or enforced by the United States (including OFAC), the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom.
“Sanctions List” means the U.S. Department of the Treasury’s Office of Foreign Assets Control Specially Designated Nationals and Blocked Persons List, the U.S. Department of Commerce’s Denied Persons List and Entity List, and any equivalent restricted-party or denied-party list maintained by the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom, in each case as amended from time to time.
“Shares” has the meaning set forth in Recital (A).
“SPA” has the meaning set forth in Recital (C).
“Strategic Arrangement” has the meaning set forth in Section 9.03(a).
“Strategic Trade” has the meaning set forth in the definition of Restricted Transaction.
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“Transfer” means, in respect of any Equity Securities, to sell, assign, transfer, dispose of, pledge, charge, encumber or otherwise deal with, whether directly or indirectly and whether in a single transaction or a series of transactions, the legal or beneficial ownership of, or any interest in, those Equity Securities, and “Transferred” and “Transferee” have the correlative meanings.
“Tribunal” has the meaning set forth in Section 14.09(b).
“Trigger Date” has the meaning set forth in Section 9.01(a).
“Uplisting” means the migration of the Shares from trading on UPCoM to listing on the Ho Chi Minh Stock Exchange.
Section 1.02 Interpretation
(a) Section 1.02 of the SPA (Interpretation) applies to this Agreement as if set out in full in this Agreement, with references to “this Agreement” being references to this Agreement.
(b) References to a “Section”, “Article” or “Schedule” are to a section, article or schedule of this Agreement unless otherwise stated.
(c) Where this Agreement provides that the Major Shareholder shall procure, or cause, any act or omission of the Company, that obligation is an obligation of the Major Shareholder, so far as it is legally able, to exercise the voting and other rights and powers available to it as a shareholder of the Company to procure that act or omission, and is in each case subject to Section 14.15.
(d) The requirement that the Major Shareholder shall provide all necessary or reasonable efforts for any given matter shall mean using all reasonable means and taking all actions within its power and control, including (without limitation) exercising all voting rights, shareholder rights and other rights and powers available to it as shareholder of the Company, signing any document and doing any act or thing reasonably required to achieve the matter in question, in each case subject to Section 14.15.
Article 2. GOVERNANCE AND MANAGEMENT
Section 2.01 Director Nominated by the Investor
(a) For so long as the Retention Threshold is satisfied, this Agreement remains in full force and effect and the Investor is not in material breach of this Agreement, provided that no such material breach shall be deemed to exist for the purposes of this Section 2.01 to the extent that such breach is capable of being cured and the applicable cure period set forth in Section 2.01(d) has not expired, the Investor shall be entitled to nominate one (1) individual (the “Investor Nominee”) for appointment to the BOD, and the Major Shareholder shall make all reasonable efforts, including voting in favour of any resolution appointing the Investor Nominee as a member of the BOD, to ensure that the Investor Nominee is appointed to the BOD at the first annual general meeting of shareholders of the Company held after the Closing Date, or at any other general meeting of shareholders of the Company held before that annual general meeting, provided that the Investor Nominee satisfies the requirements for members of the BOD under the Company Charter and applicable Law.
(b) For the period commencing on the Closing Date and ending on the date on which the Investor Nominee is appointed to the BOD in accordance with Section 2.01(a), the Major Shareholder shall procure that the Company permits the Investor Nominee or another individual designated by the Investor (the “Observer”) to attend all meetings of the BOD, whether in person, by telephone or otherwise, in an observer capacity, and shall provide to the Observer, concurrently with the members of the BOD and in the same manner, notice of each such meeting and a copy of all materials provided to those members (the “Observer Rights”). The Observer shall have authority to act only as a non-voting observer, shall have no power to vote on any matter within the authority of the BOD and shall not have the power or authority, as agent, attorney-in-fact or otherwise, to vote Shares, to grant waivers, approvals or consents, to enter into or amend agreements, to accept notices or legal process, or otherwise to represent or act on behalf of the Company in any legally binding manner. The Investor shall procure that the Observer uses any information and materials received in that capacity solely for the purpose of reporting to the Investor.
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(c) The Investor shall be entitled to substitute any incumbent Investor Nominee by nominating a substitute Investor Nominee for appointment to the BOD in accordance with the Company Charter and applicable Law, and Sections 2.01(a) and 2.01(f) shall apply to any substitute Investor Nominee mutatis mutandis.
(d) Upon the Retention Threshold ceasing to be satisfied, upon this Agreement ceasing to be in full force and effect, or upon the Investor being in material breach of this Agreement which is not remedied within thirty (30) Business Days of written notice by the Major Shareholder of such breach (or, if a longer cure period is expressly provided under such notice, within such longer period), the Investor shall, at the Major Shareholder’s request, procure that the Investor Nominee immediately resigns as a member of the BOD, and the Investor’s rights under this Section 2.01 shall terminate. If the Investor fails to procure such resignation within five (5) Business Days of the Major Shareholder’s request, the Major Shareholder shall be entitled to take all actions necessary or desirable to remove the Investor Nominee from the BOD, including exercising any voting rights, executing any shareholder resolutions, or taking any other corporate action required under applicable law or the constitutional documents of the Company to give effect to such removal.
(e) Notwithstanding Section 2.01(d), the Parties agree that if the Retention Threshold ceases to be satisfied but the Investor and its Permitted Transferees continue to hold, in aggregate, Investor Shares representing at least fifty percent (50%) of the number of Sale Shares originally acquired by the Investor from the Major Shareholder pursuant to the SPA, the Investor shall remain entitled to designate one individual as Observer and exercise the Observer Rights, provided that the Investor is not in material breach of this Agreement which is not remedied within thirty (30) Business Days of written notice by the Major Shareholder setting forth the nature of such breach. During any period in which the Investor is in material breach of this Agreement and such breach has not been remedied, the Observer shall not be entitled to receive or have access to any information, materials or notices in relation to such material breach or any action taken or proposed to be taken by the Major Shareholder or the Company in connection therewith. The Observer shall have no vote, shall be subject to the same limitations and obligations as an Observer under Section 2.01(b), and shall, before attending any meeting, give a confidentiality undertaking and comply with the same conflicts of interest arrangements as apply to members of the BOD.
(f) The Major Shareholder shall procure that the Investor Nominee benefits from the same indemnification and protections, and is covered by the same directors’ and officers’ liability insurance, as the other members of the BOD.
(g) The Investor acknowledges that the Investor Nominee owes duties to the Company under applicable Law and the Company Charter, and that nothing in this Agreement requires the Investor Nominee to act, or to refrain from acting, in a manner inconsistent with those duties.
Article 3. DIVIDEND POLICY
Section 3.01 Dividend Policy
(a) The Investor is entitled to all dividends and other distributions (in cash or in kind) declared, paid or made by the Company in respect of the Investor Shares on or after the Settlement Date (in the case of a Put-Through Transaction) or the Closing Date (in the case of an Off-band Transaction), each as defined in the SPA, in accordance with the Investor’s percentage shareholding in the Company, and is not entitled to any dividend or distribution declared before such applicable date. The Parties acknowledge that the Investor shall not participate in the interim dividend for the 2026 financial year declared by the Company, the record date for which is 17 September 2026. For each of the three (3) Financial Years following the Financial Year in which the Closing Date falls, the Major Shareholder shall procure that the Company targets a dividend payout ratio, being dividends payable expressed as a percentage of net profit, of up to eighty percent (80%).
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(b) All dividend declarations and payments shall be made in accordance with the Company Charter and applicable Law, shall remain at the full discretion of the BOD and the general meeting of shareholders of the Company, and shall in all cases be made only out of distributable profits available for distribution, as determined by the BOD after taking into account accumulated losses, retained earnings, required reserves, working capital requirements, capital expenditure requirements, debt service obligations, debt covenants, solvency, applicable accounting standards, tax considerations and applicable Law.
(c) Section 3.01(a) is an obligation to target the stated payout ratio only. It does not constitute an undertaking that any dividend will be declared or paid in any Financial Year, or at any particular level. Notwithstanding the foregoing, the Major Shareholder shall use its reasonable efforts, subject always to the matters referred to in Section 3.01(b), to procure that the Company declares and pays dividends legally available for distribution in respect of each relevant Financial Year, with a view to achieving the dividend payout ratio contemplated by Section 3.01(a). The Major Shareholder shall not take, or procure that the Company takes, any action with the primary purpose of avoiding or circumventing the dividend payout ratio contemplated by Section 3.01(a), it being acknowledged that the declaration of any dividend remains at the discretion of the BOD and the general meeting of shareholders and subject to the matters referred to in Section 3.01(b). Intra-group loans, cash pooling and other treasury arrangements between the Company or its subsidiaries and the Major Shareholder or its Affiliates, on arm’s length terms and/or in the ordinary course of managing the group’s treasury, do not of themselves constitute avoidance or circumvention of the dividend policy. No Losses shall be deemed to be incurred by the Investor by reason only of the Company distributing a dividend at a level below the target ratio, provided that the Major Shareholder has complied with its obligations under this Section 3.01.
Section 3.02 Voting in relation to Dividend Policy
Each Party shall exercise its voting powers as a shareholder of the Company, and shall, subject to applicable Law and to the duties owed by the members of the BOD to the Company, procure that the members of the BOD nominated by it exercise their voting powers, in a manner which is consistent with this Article 3, subject in each case to Section 3.01(b) and Section 3.01(c). Retention of funds for the requirements identified in Section 3.01(b), determined in good faith by the BOD or the general meeting of shareholders, shall not constitute avoidance or circumvention of the dividend policy. The Major Shareholder shall, subject to applicable Law and Section 14.15, exercise, and procure that its nominee directors (if any) exercise, all voting rights and other rights available to it to support and give effect to the dividend policy set out in Section 3.01(a), including by voting in favour of the declaration and payment of dividends at the level contemplated by Section 3.01(a) at the relevant meetings of the BOD and general meeting of shareholders, as applicable.
Article 4. TRANSFER RESTRICTIONS
Section 4.01 Investor Lock-up
(a) Notwithstanding any other provision of this Agreement, from the Closing Date until the date falling eighteen (18) months after the Closing Date (the “Lock-up Period”), the Investor shall not, and shall procure that its Permitted Transferees do not, Transfer any Investor Shares to any Person without the Major Shareholder’s prior written consent, except as set forth in Section 4.03 or Section 5.03.
(b) The Lock-up Period is in addition to, and does not limit, any lock-up or similar restriction required of the Investor by any underwriter, financial adviser or placement agent in connection with the Uplisting or any offering of Shares, or imposed on the Investor by applicable securities laws.
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(c) If the Company or the Major Shareholder grants to any other strategic investor in Equity Securities a lock-up period shorter than eighteen (18) months in connection with an investment in Equity Securities, excluding any investor acquiring Equity Securities in a public offering, Block Trade or similar capital markets transaction, the Major Shareholder shall consider in good faith whether to offer the Investor a correspondingly shorter Lock-up Period, taking into account the overall economic and commercial terms of that other strategic investor’s investment taken as a whole; provided that the Investor shall not be entitled to any shorter Lock-up Period if the overall economic and commercial terms of that other investment, taken as a whole, are more favourable to the Company or the Major Shareholder than the terms of the Investor’s investment.
(d) In connection with the Uplisting or any underwritten or marketed offering of Shares that contemplates a secondary sale by existing shareholders (but excluding any rights issue, employee share scheme, share incentive plan or similar arrangement, private placement or other offering of Shares by the Company that does not contemplate a secondary sale by existing shareholders), and subject to the Investor’s continued compliance with the Lock-up Period and with any underwriter-imposed lock-up or regulatory lock-up, the Major Shareholder shall procure that the Company uses reasonable efforts to facilitate liquidity for the Investor in respect of such portion of the Investor Shares as the Investor may request to sell, subject in all respects to applicable Law, the requirements of the underwriter, financial adviser or placement agent, prevailing market conditions, the size and structure of the offering and the interests of the Company and its other shareholders provided that such interests shall not be invoked unreasonably to prevent or restrict the Investor’s participation in the relevant offering; provided that neither the Company nor the Major Shareholder shall have any obligation to ensure that any sale by the Investor is completed or to increase the size of any offering to accommodate any such sale, and the Investor shall bear all underwriting discounts, selling commissions, transfer taxes and other incremental costs and expenses attributable to the portion of Equity Securities sold by the Investor.
Section 4.02 Restricted Entities
(a) At no time, whether during or after the Lock-up Period, shall the Investor Transfer any Investor Shares to a Restricted Entity, and the Investor shall procure that its Permitted Transferees do not do so.
(b) The Investor shall, before any Transfer of Investor Shares following the expiry of the Lock-up Period, make such enquiries as are reasonable in the circumstances to satisfy itself that the proposed Transferee is not a Restricted Entity, and shall on request certify that fact in writing to the Major Shareholder.
(c) Section 4.02(a) does not apply to a Transfer effected on-exchange after the Lock-up Period, through the trading system of UPCoM or, following the Uplisting, of the Ho Chi Minh Stock Exchange, solely by way of the order-matching method (and, for the avoidance of doubt, not by way of a put-through or negotiated transaction or any other method pursuant to which the identity of the purchaser is known or can reasonably be ascertained), where the identity of the purchaser is not known and cannot reasonably be ascertained by the Investor.
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Section 4.03 Exceptions to the Lock-up
Section 4.01(a) shall not apply to:
(a) any Transfer by the Investor of any or all of the Investor Shares to a Permitted Transferee;
(b) any Transfer by the Investor of any or all of the Investor Shares to the Major Shareholder or any Affiliate of the Major Shareholder; or
(c) any Transfer following the removal of transfer restrictions under Section 5.03(a).
Section 4.04 Non-compliance Transfer
Any attempt to Transfer any Investor Shares other than in compliance with this Agreement shall be null and void, and the Parties shall not register, and the Major Shareholder shall procure that the Company does not register, any such Transfer.
Section 4.05 Subsequent Strategic Transactions
(a) If, during the period commencing on the Closing Date and ending on the date falling six (6) months after the Closing Date, the Major Shareholder enters into a transaction or series of related transactions with any third party comprising a sale by the Major Shareholder of Shares to that third party or any of its Affiliates, similar in nature and scope to the Transaction (a “Similar Transaction”), the Major Shareholder shall not enter into that Similar Transaction on terms that imply a valuation of the Company, determined in respect of that Similar Transaction taken as a whole, lower than the valuation of the Company applicable to the Investor’s investment under the SPA, provided that the Purchase Price per Share shall be equitably adjusted to reflect any share split, share dividend, subdivision, combination, reclassification, recapitalization or other similar event affecting the number or denomination of Shares, and any cash dividend or other distribution to shareholders received within the timeframe set forth above, in each case occurring after the date on which the Purchase Price per Share was originally determined, in each case to the extent necessary to preserve the economic equivalence of the original Purchase Price per Share for purposes of this comparison.
(b) For the avoidance of doubt, Section 4.05(a) shall not apply to, and the Major Shareholder shall retain full flexibility in respect of, (i) any capital markets transaction (including, without limitation, any Block Trade or other block trade, any public offering, or any offering, sale or listing of Shares in connection with the Uplisting or any other listing of Shares), which shall in each case remain subject to prevailing market conditions at the relevant time, (ii) any Transfer to the Investor or any of its Affiliates, and (iii) any Transfer to a Permitted Transferee of the Major Shareholder, or any reorganisation, restructuring or holding company insertion referred to in Section 11.03(a), provided that the Permitted Transferee adheres to this Agreement and transfers the relevant Shares back to the Major Shareholder or another Permitted Transferee before ceasing to be an Affiliate of the Major Shareholder. A Transfer within the Major Shareholder’s group does not establish a comparable third-party investment valuation for the purposes of Section 4.05(a).
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Article 5. RESTRICTED TRANSACTIONS; RIGHT TO MATCH; RIGHT TO SELL
Section 5.01 Right to Match
(a) The Major Shareholder does not intend to proactively seek out or solicit any Restricted Transaction, and, when executing a Block Trade, shall not instruct any bank, broker, dealer or other intermediary engaged in connection with that Block Trade to seek out or solicit a Restricted Transaction on its behalf.
(b) For so long as the Retention Threshold is satisfied and each of the Commercial Agreements remains in full force and effect, if the Company or the Major Shareholder proposes to enter into a Restricted Transaction, the Major Shareholder shall first notify the Investor in writing of the proposed Restricted Transaction (the “Restricted Transaction Notice”), including the number and type of Shares to be transferred or issued, the proposed transfer or subscription price, the expected timetable and material conditions for completing the relevant transaction (if identified at that stage), the jurisdiction of the relevant counterparty and, to the extent known to the Major Shareholder, of its ultimate beneficial owner, whether either of them is a Restricted Entity and, subject to any confidentiality obligations binding on the Major Shareholder or the Company, their identity, and a summary of the material economic terms of the relevant transaction to the extent legally permissible and not prohibited by applicable confidentiality obligations, and offering the Investor the opportunity to participate in that Restricted Transaction by matching its terms.
(c) In respect of a Strategic Trade, the Investor shall have sixty (60) days from receipt of the Restricted Transaction Notice (the “Match Period”) to notify the Major Shareholder in writing of its exercise of the right to match (a “Match Notice”), specifying the terms on which the Investor is willing to match the Restricted Transaction, failing which the right to match shall lapse in respect of that Strategic Trade.
(d) The Investor’s right to match under this Section 5.01 shall in any event terminate on the first anniversary of the Closing Date.
(e) If the Investor validly delivers a Match Notice within the applicable Match Period and the Major Shareholder accepts the Investor’s proposal in accordance with Section 5.01(f) (the date of such acceptance, the “Match Acceptance Date”), the Major Shareholder shall, and shall procure that the Company shall enter into and complete the relevant transaction with the Investor (or its designated Person) on terms no less favourable to the Major Shareholder and the Company, as applicable, than those offered by the Restricted Entity. The Investor (or its designated Person) shall pay the agreed consideration, against simultaneous completion of the relevant transaction and delivery of the relevant Shares, within forty-five (45) days after the Match Acceptance Date (the “Match Completion Date”), extended by the period reasonably required to obtain any Authorization actually required for that completion, failing which the Investor’s right to match lapses in respect of that Restricted Transaction; and each such transaction shall be subject in all cases to applicable Law, required Authorizations, listing and exchange rules, the duties owed by the members of the BOD to the Company and any binding legal or contractual obligation and, in the case of a Block Trade, the accelerated timetable set out in Section 5.02.
(f) The Major Shareholder shall not be obliged to accept any proposal set out in a Match Notice unless the Major Shareholder determines, acting reasonably and in good faith and subject to applicable Law and the interests of the Company and its shareholders, that the Investor’s proposal is no less favourable to the Major Shareholder than the applicable Restricted Transaction, taken as a whole, provided that the Major Shareholder shall not reject the Investor’s proposal on the basis of any factor that is not material to the economic or commercial terms of the applicable Restricted Transaction.
(g) If the Investor fails to deliver a Match Notice within the applicable Match Period, the Investor shall be deemed to have waived its rights under this Section 5.01 in respect of the relevant Restricted Transaction, and the Major Shareholder and the Company shall be entitled to proceed with the Restricted Transaction with the Restricted Entity, provided that such Restricted Transaction is conducted on terms, taken as a whole, no more favourable to the Restricted Entity than those set out in the Restricted Transaction Notice. For the avoidance of doubt, the Investor’s failure to exercise its right to match, or its decision not to participate, in respect of any Restricted Transaction shall not prejudice or otherwise affect its right to receive notice of, and exercise its rights under, this Section 5.01 in respect of any subsequent Restricted Transaction.
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(h) For the avoidance of doubt, in respect of a Restricted Transaction that is a Block Trade, the procedures set out in Section 5.02 shall apply in lieu of the timing requirements of this Section 5.01, and nothing in this Section 5.01 shall require the Major Shareholder to delay, restructure or forgo a Block Trade in order to accommodate the Match Period or acceptance process otherwise applicable under this Section 5.01.
(i) For the avoidance of doubt, nothing in this Article 5 restricts the size of any Block Trade, any ordinary on-market trading by public shareholders, any unsolicited reverse inquiry, any ordinary-course investor relations activity, any broadly marketed offering or process not specifically directed at Restricted Entities, or any transaction effected through customary market intermediaries or trading facilities where neither the Company nor the Major Shareholder has knowingly and specifically targeted a Restricted Entity, and none of the foregoing shall constitute a Restricted Transaction. Nothing in this Article 5 requires the Company or the Major Shareholder to take, or refrain from taking, any action that would breach applicable Law, listing or exchange rules, the duties owed by the members of the BOD to the Company or any binding legal obligation, and each of the Company and the Major Shareholder retains discretion to act consistently with those requirements.
Section 5.02 Block Trade Mechanics
(a) The Parties recognise that a Block Trade may be arranged and executed on a short, including same-day or overnight, basis, including through wall-crossing, book-building and customary market execution processes.
(b) Accordingly, in respect of a Restricted Transaction which is a Block Trade, the notice under Section 5.01(b) may be given orally and confirmed in writing as soon as practicable thereafter, and may be given on a wall-crossed basis to a named individual previously designated by the Investor for that purpose. Such notice shall, to the extent legally permissible and subject to applicable confidentiality obligations, include sufficient information regarding the commercial terms of the proposed Block Trade to enable the Investor to determine whether to exercise its right to match. The Investor shall have four (4) hours from receipt of that notice and the information reasonably necessary to evaluate the proposed Block Trade, or such longer period as the Major Shareholder may specify, within which to confirm in writing whether it exercises its right to match.
(c) Where practicable to do so without compromising the confidentiality or timely execution of the Block Trade, the Major Shareholder shall use commercially reasonable efforts to provide the Investor’s designated individuals with reasonable advance informal notice of the possibility of a Block Trade, which notice may be non-binding, may be given orally, and need not include pricing or other confidential economic terms.
(d) The Investor shall designate to the Major Shareholder, and keep updated, the name and contact details of at least two (2) individuals authorised to receive wall-crossed notices and to bind the Investor for the purposes of this Section 5.02. The Investor shall procure that each such individual is subject to appropriate information barriers and dealing restrictions.
(e) If the Investor fails to respond within the period specified under Section 5.02(b), or responds otherwise than by confirming that it matches the terms of the Block Trade in full, the Investor shall be deemed not to have exercised its right to match in respect of that Block Trade, and Section 5.01(g) shall apply.
(f) Nothing in this Section 5.02 requires the Major Shareholder to delay, condition, restructure or forgo a Block Trade, or to take, or refrain from taking, any action, or to disclose any information the disclosure of which would breach applicable Law, the Trading Rules (as defined in the SPA) or any duty of confidentiality.
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(g) If the Investor exercises its right to match in respect of a Block Trade, payment and settlement shall occur on the same timetable as that Block Trade, and Section 5.01(e) shall not apply to extend that timetable. If the Investor fails to pay and settle on that timetable, the Investor shall be deemed not to have exercised its right to match in respect of that Block Trade and Section 5.01(g) shall apply.
Section 5.03 Right to Sell
(a) If the Investor does not validly exercise its right to match within the applicable response period under Section 5.01 or Section 5.02 and the relevant Restricted Transaction is subsequently completed with the applicable Restricted Entity, then, subject to and effective only upon that completion, all lock-up and transfer restrictions applicable to the Investor Shares under Section 4.01 shall cease to apply, to the extent permissible under applicable Law.
(b) In the circumstances provided in Section 5.03(a), the Investor shall also have the option, exercisable by written notice to the Major Shareholder within thirty (30) days of completion of the relevant Restricted Transaction, to (i) procure that its relevant Affiliate exercises any termination right available to it under the relevant Commercial Agreements, in accordance with their terms, and no such exercise shall of itself constitute a breach of, or give rise to liability under, the relevant Commercial Agreement, without prejudice to any obligation accrued before termination or expressed to survive it and (ii) procure that the Investor Nominee resigns from the BOD, and, to the extent that the resignation or removal of the Investor Nominee from the BOD requires any approval of the shareholders of the Company, the Major Shareholder shall procure that such shareholders’ approval is sought and obtained as soon as reasonably practicable following receipt of the Investor’s notice under this Section 5.03(b).
(c) For the avoidance of doubt, Section 4.02 shall continue to apply notwithstanding the removal of restrictions under Section 5.03(a).
Article 6. PRE-EMPTION RIGHT
Section 6.01 Pre-emption Right
(a) Subject to Section 6.02 and Section 6.05, and to any corporate or regulatory Authorization as may be necessary or required, without limitation or prejudice to any rights or entitlements granted to the Investor under applicable Law or Company Charter, if the Company proposes to issue New Securities by way of a Down Round, the Major Shareholder shall procure that the Company provides the Investor with the right, but not the obligation, to acquire up to such portion of the New Securities offered in that Down Round as is equal to the Investor’s Relevant Percentage immediately before that issue, on the same terms and at the same price as offered in that Down Round (the “Pre-emption Right”).
(b) The Pre-emption Right applies only to a Down Round. It does not apply to any other issue of New Securities, and the Investor waives, to the fullest extent permitted under applicable Law and the Trading Rules, any pre-emptive right it may otherwise have in respect of any issue of New Securities that is not a Down Round. The Investor shall, and the Major Shareholder shall procure that the Company shall, execute or procure the execution of all such documents (including any shareholder resolutions of the Company) as may be necessary to give effect to that waiver.
(c) The Pre-emption Right shall in any event terminate on the date falling eighteen (18) months after the Closing Date and shall not apply to any Down Round in respect of which the New Issuance Notice has not been delivered on or before that date; provided that, where a New Issuance Notice has been delivered on or before that date, this Article 6 shall continue to apply in respect of the Down Round the subject of that New Issuance Notice.
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Section 6.02 Exempted New Issues
The Pre-emption Right shall not apply to any of the following, whether or not it constitutes a Down Round:
(a) an issue of New Securities other than for cash consideration;
(b) an issue of Shares to employees, officers or directors pursuant to any employee share ownership plan, share incentive plan or similar arrangement;
(c) a share split, share bonus, share dividend or distribution, sub-division, consolidation, reverse share split or similar reorganization of the share capital of the Company;
(d) an issue of Shares on a rights issue basis, irrespective of the valuation ascribed to the Company by that rights issue, so long as all shareholders of the Company are entitled to participate on a pro rata basis;
(e) an issue of New Securities as consideration for, or the proceeds of which are applied directly in paying consideration for, the acquisition of any business, asset or equity interest;
(f) an issue of New Securities in connection with any corporate reorganisation, restructuring, holding company insertion, business combination, debt restructuring or conversion of indebtedness;
(g) an issue of New Securities in connection with or pursuant to the Uplisting or any transaction referred to in Section 11.03(a); and
(h) any other issue of New Securities agreed in writing between the Parties.
Section 6.03 Pre-emption Right Procedures
(a) The Major Shareholder shall procure that the Company provides written notice (a “New Issuance Notice”) to the Investor stating (i) the Company’s intention to effect a Down Round, (ii) the total number of New Securities to be offered in that Down Round, (iii) the maximum number of New Securities which the Investor is entitled to subscribe for pursuant to the Pre-emption Right (the “Investor Entitlement”), (iv) the price per New Security and the other terms upon which the Company proposes to offer those New Securities, and (v) the expiry date of the New Issuance Offer Period referred to in Section 6.03(b).
(b) The period during which the Investor may exercise the Pre-emption Right (the “New Issuance Offer Period”) shall be twenty (20) Business Days from the date of the New Issuance Notice.
(c) The Investor may elect to exercise all or any portion of its Pre-emption Right by giving written notice (a “New Issuance Acceptance Notice”) to the Company and the Major Shareholder on or before the expiry of the New Issuance Offer Period, stating the number of New Securities, up to its Investor Entitlement, in respect of which it accepts the offer and the aggregate subscription price payable for those New Securities, failing which the Investor shall be deemed to have declined to subscribe for any of the New Securities comprised in that New Issuance Notice. Any New Issuance Acceptance Notice given by the Investor shall be irrevocable.
(d) The Company may, in its reasonable discretion, round up or round down any allotment of New Securities to the Investor pursuant to this Section 6.03 to avoid fractional allotments, so that the New Securities offered and/or allotted are in whole numbers, provided that any such rounding is applied consistently as between the Investor and any other Person participating in that issue of New Securities.
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(e) If a New Issuance Acceptance Notice is delivered, the Major Shareholder shall procure that, within five (5) Business Days after expiry of the New Issuance Offer Period or after the date of the New Issuance Acceptance Notice, whichever is earlier, the Company gives notice to the Investor of: (i) the place, date and time at which the issue and subscription of the relevant New Securities is to be completed, which shall, unless the Company and the Investor otherwise agree, be no earlier than fifteen (15) Business Days after the last day of the New Issuance Offer Period; and (ii) the Company’s bank account details for payment of the aggregate subscription price for those New Securities.
(f) Any decision by the Investor not to exercise its Pre-emption Right in any one instance shall not affect its rights in respect of any future Down Round.
Section 6.04 Residuary Portion
If the Investor is entitled to participate in a Down Round under this Article 6 and does not elect to, or if so elected but fails to make a payment at the required time in connection with its commitment to, subscribe for all of the New Securities comprised in its Investor Entitlement, the Major Shareholder may procure that the Company allots the unsubscribed portion of the New Securities to the Major Shareholder or any Person designated by the Major Shareholder.
Section 6.05 Regulatory Qualification
The Parties acknowledge that the Company is a public company whose Shares are registered for trading on UPCoM, and that the exercise of the Pre-emption Right is subject in all respects to the Law on Securities, the Trading Rules, the Company Charter, the approval of the general meeting of shareholders of the Company where required, and the principle of equal treatment of shareholders. Nothing in this Article 6 requires the Major Shareholder or the Company to take any step that would breach any of the foregoing, and if the Pre-emption Right cannot lawfully be given effect in respect of any Down Round, the Parties shall each use reasonable best efforts to agree and implement an alternative mechanism producing a substantially equivalent economic result for the Investor to the fullest extent permitted by applicable Law, the Trading Rules and the Company Charter.
Article 7. INVESTOR’S RIGHTS
Section 7.01 Information Rights of the Investor
(a) The Investor shall be entitled to the same information rights and other rights set out in Section 7.03(a) as those available to shareholders holding five percent (5%) common shares of a joint stock company under applicable Law. In addition, to the extent permitted under applicable Law and for so long as the Retention Threshold is satisfied, the Major Shareholder shall procure that the Company provides the Investor with:
| (i) | the audited consolidated financial statements of the Company, as soon as they become available and in any event within ninety (90) days after the end of each Financial Year; |
| (ii) | the unaudited semi-annual consolidated accounts of the Company, within sixty (60) days after the end of each calendar half year; |
| (iii) | the unaudited quarterly consolidated management accounts of the Company, within forty-five (45) days after the end of each calendar quarter; and |
| (iv) | such other information in relation to the tungsten business of the Company and its Affiliates as the Investor may reasonably request from time to time to allow the Investor to satisfy its U.S. reporting obligations. |
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(b) All information delivered under this Article 7 shall be prepared in English or, if prepared in Vietnamese, delivered together with an English translation.
(c) If the Investor requires financial or other information in respect of the Company for the purposes of its own reporting obligations under the securities laws of the United States, the scope, timelines, confidentiality protections and cost allocation shall be as agreed between the Investor and the Major Shareholder. Any conversion of financial information to United States generally accepted accounting principles, auditor access, internal-control review or compliance certification shall be limited to what is reasonably necessary and legally permissible, and shall be subject to reimbursement by the Investor of the costs of the Major Shareholder and the Company, including third-party adviser costs.
Section 7.02 Material Non-Public Information
(a) The Parties acknowledge that the Company is a public company and that the Investor is a company whose securities are listed in the United States, and that the securities laws of Vietnam and of the United States each restrict dealing in securities while in possession of MNPI and the communication of MNPI.
(b) Any information to be provided to the Investor under this Agreement shall be provided in a manner such that the Investor does not receive, whether directly or indirectly, any MNPI in respect of the Company. The Investor waives and releases any right to receive MNPI under this Agreement, and the Major Shareholder shall not be in breach of this Article 7 by reason of withholding information the provision of which would or might result in the Investor receiving MNPI, provided that the Major Shareholder shall use reasonable efforts to provide the same information in a redacted, aggregated or otherwise lawful form where practicable.
(c) Each Party shall procure that its directors, officers, employees, Affiliates and advisers comply with the dealing restrictions applicable to them under the securities laws of Vietnam and of the United States, and neither Party shall deal, or procure or encourage any other Person to deal, in the securities of the other Party or of the Company while in possession of MNPI relating to those securities.
(d) Each Party agrees that the obligations in Section 14.04 constitute an agreement to maintain the other Party’s Confidential Information in confidence for the purposes of Regulation FD under the U.S. Securities Exchange Act of 1934 and Article 131 of the Law on Securities.
Section 7.03 Other Rights
(a) Other than the information rights set out in Section 7.01 above, the Major Shareholder shall procure that, with effect from the Closing Date and for so long as the Retention Threshold is satisfied, the Investor has the benefit of rights equivalent to those available under applicable Law to a shareholder holding five percent (5%) of the common shares of a joint stock company, by exercising or procuring the exercise of the Major Shareholder’s own rights as a shareholder of the Company for the Investor’s benefit in accordance with Section 7.03(b) and, where the Major Shareholder so elects, by procuring amendments to the Company Charter for that purpose. For the avoidance of doubt, such rights shall include, without limitation:
| (i) | the right to request the convening of a general meeting of shareholders of the Company in the circumstances set out in Article 115.3 of the Law on Enterprises of Vietnam and, where permitted by applicable Law, to convene such meeting; |
| (ii) | the right to propose matters for inclusion in the agenda of a general meeting of shareholders of the Company; |
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| (iii) | the right to request the competent dispute resolution authority to consider and cancel any resolution of a general meeting of shareholders of the Company in the circumstances permitted by applicable Law. |
(b) To the extent necessary to give effect to Section 7.03(a), the Major Shareholder shall exercise, or procure the exercise of, the relevant rights for the benefit of the Investor as if any proposal or request made by the Investor had been made by the Major Shareholder itself, subject to applicable Law and Section 14.15.
Article 8. OFFTAKE RIGHTS COMMITTEE
Section 8.01 Establishment and Composition
(a) With effect from the Closing Date, the Parties shall establish a joint committee (the “Offtake Rights Committee”) comprising an equal number of representatives appointed by each of the Company and the Investor, being two (2) representatives each unless the Parties agree otherwise in writing.
(b) Each Party may replace any representative appointed by it at any time by written notice to the other Party. The Offtake Rights Committee shall meet at least quarterly, and otherwise as the Parties may agree. Meetings may be held in person or by any form of telephone or video conference in which each participant is able to hear and be heard by all other participants simultaneously.
Section 8.02 Remit
(a) The Offtake Rights Committee shall be the primary forum for coordinating volumes, scheduling, quality specifications and logistics, and Approved Customers solely in respect of volumes subject to the offtake and conversion arrangements between the Company and/or MTC and the Investor under the Commercial Agreements.
(b) The remit of the Offtake Rights Committee is limited to volumes under the Commercial Agreements. It does not extend to, and does not apply in respect of, any volumes that the Company, MTC or any of their Affiliates sells, supplies, allocates or otherwise makes available to any other customer or third party.
(c) The Offtake Rights Committee is advisory only and has no decision-making authority. This Article 8 shall terminate, and the Offtake Rights Committee shall be dissolved, on the date on which no Commercial Agreement remains in full force and effect. Operational decisions in respect of each Party’s facilities remain with that Party. Nothing discussed at, or recommended by, the Offtake Rights Committee shall vary any Commercial Agreement or create any obligation on either Party unless recorded in a written amendment executed by the relevant parties to that Commercial Agreement.
(d) All information shared at or in connection with the Offtake Rights Committee is Confidential Information for the purposes of Section 14.04, and Section 7.02 applies to it.
(e) The Parties shall conduct the affairs of the Offtake Rights Committee in a manner consistent with applicable competition and antitrust laws, and shall not use it to exchange competitively sensitive information relating to any third-party customer, or to coordinate pricing or output otherwise than in respect of volumes under the Commercial Agreements.
Section 8.03 Facilitation
The Parties shall use reasonable efforts to provide the Offtake Rights Committee with the information reasonably required for it to make its recommendations in respect of the volumes under the Commercial Agreements, including capacity and allocation reporting. The recommendations of the Offtake Rights Committee are advisory only and do not amend, or bind any party to, the Commercial Agreements.
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Article 9. BISMUTH: EXCLUSIVE NEGOTIATION RIGHT
Section 9.01 Trigger Date
(a) [**]
(b) Neither the Company nor the Major Shareholder is under any obligation under this Agreement to seek, negotiate, agree or procure any such amendment or termination.
Section 9.02 Bismuth Negotiation Exclusivity Period
The “Bismuth Negotiation Exclusivity Period” means the period commencing on the Trigger Date and expiring on the earlier of (a) the date on which the Company and the Investor enter into definitive agreements in respect of the Strategic Arrangement, and (b) the date falling twelve (12) months after the Trigger Date. The Bismuth Negotiation Exclusivity Period shall not commence unless and until the Trigger Date occurs.
Section 9.03 Exclusive Right to Negotiate
(a) During the Bismuth Negotiation Exclusivity Period, the Investor shall have an exclusive right to negotiate with the Company a strategic arrangement for the supply to the Investor of bismuth produced from the Nui Phao mine in Vietnam, which may include bismuth cement, refined bismuth and/or bismuth produced from any contemplated bismuth refinery facility in Vietnam (the “Strategic Arrangement”), in each case subject to available volumes, the Company’s existing customer commitments, product specifications, any separately agreed capital plan for such facility, and market-based pricing to be agreed in the applicable definitive agreements.
(b) During the Bismuth Negotiation Exclusivity Period, the Major Shareholder shall procure that neither the Company nor any of its Affiliates enters into, or continues, negotiations with any other Person in respect of a strategic arrangement for the supply of bismuth produced from the Nui Phao mine that is substantially equivalent in scope to the Strategic Arrangement, save that this Section 9.03(b) does not restrict the Company or any of its Affiliates from:
(i) performing, amending, renewing or extending any contract in existence at the Trigger Date;
(ii) selling bismuth cement or other bismuth products in the ordinary course of business to any existing customer; or
(iii) responding to an unsolicited approach to the extent necessary to comply with applicable Law or the duties owed by the members of the BOD to the Company.
(c) The exclusivity granted by this Section 9.03 is a right to negotiate only. It does not grant the Investor any right to purchase, offtake or otherwise acquire any bismuth, and it does not oblige the Company or the Major Shareholder to enter into the Strategic Arrangement or any other arrangement except on terms and conditions acceptable to the Company. Neither Party shall be liable to the other by reason only of a failure to agree the Strategic Arrangement.
(d) The Parties shall negotiate the Strategic Arrangement in good faith during the Bismuth Negotiation Exclusivity Period. On expiry of the Bismuth Negotiation Exclusivity Period without definitive agreements having been entered into, the exclusivity in this Section 9.03 shall lapse automatically and the Company and its Affiliates shall be free to negotiate and contract with any Person in respect of bismuth without further obligation to the Investor.
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Section 9.04 Bismuth Facility
The establishment of a bismuth refinery facility in Vietnam may be considered by the Company, subject to the commercial attractiveness of the terms and conditions to be mutually agreed for the sale of bismuth metal to United States government agencies through the Investor, assessed against the Company’s existing commercial arrangements with its current bismuth cement customer and the costs, liabilities and commercial consequences that the Company would incur in connection with any early termination or amendment of those existing arrangements. Nothing in this Agreement obliges the Company to establish, fund or operate any such facility, and the allocation and treatment of any facility costs shall be determined in the definitive agreements for the Strategic Arrangement.
Section 9.05 Bismuth Offtake
Subject to Section 9.03 and Section 9.04, the Parties will negotiate in good faith a potential offtake by the Investor of bismuth, including bismuth cement and refined bismuth, originating from the Nui Phao mine and/or any contemplated bismuth facility, subject to available volumes, the Company’s existing customer commitments, product specifications, any separately agreed capital plan for a facility and market-based pricing to be agreed in the relevant offtake agreement. The scope, percentage, term and pricing of any bismuth offtake are not agreed as at the date of this Agreement and shall be determined in the definitive agreements.
Section 9.06 Sole Exclusivity
The exclusive right to negotiate described in Section 9.03 is the only exclusivity right granted or contemplated by this Article 9, and no other exclusivity, preferential right, right of first refusal, right of first offer or right to match arises in respect of bismuth under this Agreement.
Article 10. JOINT COLLABORATION
Section 10.01 Joint Market Development and Other Collaboration
The Investor agrees to use commercially reasonable efforts to support the Company in the United States and Europe in any reasonable manner, as determined in good faith by the Investor, including through possible co-marketing, co-selling, joint customer engagement, and other commercial cooperation. The Parties shall engage in good faith to jointly pursue business from major tungsten projects that do not currently use either Party’s or the Company’s supply chain.
Section 10.02 Joint Trading Business
The Parties may also explore ways to work jointly to co-develop a trading business focused on tungsten, bismuth, and related critical-minerals products, including the structure of any potential venture, governance, capital contributions, geographic and product scope and the relationship of the trading business to each Party’s existing and conversion arrangements. The specific terms of any such joint business shall be developed and agreed in writing between the Parties.
The arrangements contemplated by this Article 10 are non-exclusive, and nothing in this Article 10 obliges either Party to submit any joint bid, allocate any opportunity to the other Party, make any investment or enter into any transaction, in each case except as separately agreed in writing between the Parties.
Article 11. OBLIGATIONS AND ACKNOWLEDGEMENTS
Section 11.01 Compliance with the Transaction Documents
The Major Shareholder shall, as shareholder of the Company, approve any corporate approvals required in order to facilitate compliance by the Company with its obligations under the Transaction Documents, and shall not approve any corporate approval which conflicts with the terms of the Transaction Documents. The Major Shareholder shall use reasonable best efforts to cooperate with the Company in performing its obligations under the Transaction Documents at the reasonable request of the Company or the Investor.
Section 11.02 Company Charter
The Major Shareholder shall procure that the Company does not make any amendment to the Company Charter that conflicts with, or is contrary to, the terms of the Transaction Documents.
Section 11.03 Listing and Corporate Transactions
(a) The Investor acknowledges and agrees that the structure, venue, perimeter, timing and terms of the Uplisting and of any listing, uplisting, reorganisation, restructuring, holding company insertion, business combination or other capital markets or corporate transaction involving the Company or any holding company of the Company shall be determined by the Major Shareholder and the Company, and that the Investor shall not exercise any right under this Agreement or any other Transaction Document to prevent, delay or condition any such transaction.
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(b) The Investor shall use commercially reasonable efforts to support the Uplisting and any such transaction, including through joint communications and other reasonable assistance, and shall exercise its voting rights as a shareholder of the Company in favour of any resolution reasonably required to implement it, subject to applicable Law.
(c) The mechanics by which the Investor participates in any such transaction, including in respect of any exchange, rollover or reclassification of the Investor Shares, shall be as agreed between the Parties at the relevant time. The Parties shall discuss those mechanics in good faith, and the Major Shareholder shall procure that the Investor is not treated less favourably than any other holder of Shares of the same class in respect of that transaction.
(d) The Major Shareholder shall procure that the Company uses commercially reasonable efforts to effect the Uplisting, and shall make a good faith effort to evaluate a foreign dual-listing structure, including by way of a depositary share mechanism, in the United States and, if not commercially feasible, in such other venue as the Major Shareholder may consider appropriate. This Section 11.03(d) is an obligation of efforts and evaluation only, and does not constitute an undertaking that the Uplisting or any dual listing will be effected.
Section 11.04 Investor Rights
(a) The rights conferred on the Investor by Article 2, Article 5, Article 6, Article 7, Article 8 and Article 9 (together, the “Investor Rights”) are personal to the Investor and may not be Transferred to any Person, including to any Permitted Transferee or to any Transferee of Investor Shares, without the prior written consent of the Major Shareholder.
(b) The Investor shall cease to be entitled to the Investor Rights if any third party acquires Control over the Investor, unless the Major Shareholder consents in writing. The Investor shall promptly notify the Major Shareholder upon becoming aware that any third party has acquired Control of the Investor.
(c) The Investor Rights shall terminate automatically on the earlier of (i) the Retention Threshold ceasing to be satisfied, and (ii) the date on which none of the Commercial Agreements remains in full force and effect, save that (A) Section 2.01(e) shall continue to apply in accordance with its terms, (B) Article 8 shall continue for so long as any Commercial Agreement remains in full force and effect, and (C) Section 4.02 shall survive for so long as the Investor holds any Investor Shares.
Section 11.05 Major Shareholder Obligations
Each obligation of the Major Shareholder under this Agreement to procure any act or omission of the Company applies only for so long as the Major Shareholder Controls the Company. This Section 11.05 is without prejudice to Article 5 and to any other provision of this Agreement applicable to a transaction by which the Major Shareholder ceases to Control the Company. If the Major Shareholder ceases to Control the Company, it shall remain liable for any breach of this Agreement occurring before it ceased to Control the Company, but shall have no liability for any failure to procure any act or omission of the Company occurring after that date.
Section 11.06 Divestment Restrictions
(a) The Major Shareholder shall not Transfer Shares, whether in a single transaction or a series of related transactions, pursuant to a negotiated transaction with an identified third-party acquirer that results in that acquirer acquiring Control of the Company, unless both of the following conditions have been satisfied or waived by the Investor: (i) the Major Shareholder has provided the Investor with at least forty-five (45) days’ prior written notice of the proposed Transfer, given before completion of that Transfer; and (ii) to the extent any obligations of the Major Shareholder under this Agreement remain in full force and effect immediately following that Transfer, that acquirer adheres to this Agreement as Major Shareholder, upon completion of that Transfer, in respect of such obligations. This paragraph does not apply to the Uplisting, an initial public offering, any other listing or broadly marketed public offering of Shares, or any reorganisation, restructuring or holding company insertion referred to in Section 11.03(a). A reduction or dilution of the Major Shareholder’s holding that does not result in an identified third-party acquirer acquiring Control of the Company does not trigger this paragraph. Nothing in this paragraph permits a change of Control prohibited by paragraph (b).
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(b) The Major Shareholder shall not, and shall procure that the Company does not, permit a change of Control of the Company or of any Relevant Subsidiary (as defined in the SPA) in favour of a Restricted Entity, or of any person Controlled by a Restricted Entity. On any change of Control of a Relevant Subsidiary, whether or not in favour of a Restricted Entity, the Major Shareholder shall procure that each Commercial Agreement then subsisting remains in full force and effect immediately following that change of Control, in accordance with its terms, with MTC remaining the counterparty under it, and shall give the Investor written notice of that change of Control within ten (10) Business Days after it occurs. This paragraph does not apply to (i) any reorganisation, restructuring, holding company insertion or other transaction referred to in Section 11.03(a) within the Major Shareholder’s group, or (ii) the enforcement of any security interest granted to a bona fide financial institution.
(c) If the Major Shareholder breaches paragraph (b), the Lock-up Period shall be deemed to have expired in respect of the Investor Shares. This Section 11.06 applies during the Lock-up Period and then ceases to have effect, without prejudice to any claim in respect of a breach occurring before the end of that period. Subject to the restrictions set forth in this Section 11.06, nothing in this Agreement otherwise restricts the Major Shareholder or the Company from selling, transferring or otherwise dealing with any Relevant Subsidiary or its business or assets.
Article 12. REPRESENTATIONS AND WARRANTIES
Section 12.01 Representations and Warranties of each Party
Each Party represents and warrants to the other Party that, as of the date of this Agreement and as of the Closing Date, the following statements are true, accurate and not misleading:
(a) Status and Capacity. It is a company duly incorporated and validly operating under the Laws of its jurisdiction of incorporation, and has the requisite corporate power and has obtained all material Authorizations necessary to carry on its business as now conducted.
(b) Authority. It has full legal right, requisite corporate power and authority, and has taken all corporate action and obtained all corporate approvals and Authorizations necessary, to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated by it, excluding any corporate or regulatory approval to be obtained before Closing as contemplated by the SPA.
(c) Binding Obligations. This Agreement, when duly executed, constitutes legal obligations binding upon it and enforceable against it in accordance with its terms under the governing law agreed by the Parties.
(d) No Conflict. The execution and performance of this Agreement does not materially (i) violate any provision of its charter or other constitutional documents, (ii) violate or result in a breach of or constitute a default under any applicable Law, or (iii) conflict with, contravene or result in any violation or breach of any material contract or agreement to which it is a party.
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Article 13. EFFECTIVENESS, TERM AND TERMINATION
Section 13.01 Effectiveness
All rights and obligations of the Parties under this Agreement shall, subject to Closing under the SPA, become effective on and from the Closing Date, except for Article 1 (Definitions and Interpretation), Article 12 (Representations and Warranties), this Article 13 (Effectiveness, Term and Termination) and Article 14 (Miscellaneous), which shall become effective on and from the date of this Agreement.
Section 13.02 Termination
This Agreement shall terminate upon the occurrence of any of the following:
(a) the SPA terminating before Closing;
(b) the Company being dissolved, liquidated or wound up;
(c) either Party ceasing to hold any Equity Securities;
(d) at the option of the other Party, in the case of the occurrence and continuation of any of the following events in respect of a Party:
| (i) | an involuntary proceeding being commenced or an involuntary petition being filed seeking liquidation, reorganisation, composition or other relief in respect of that Party, or any of its debts, or a substantial part of its assets, or the appointment of a receiver, trustee, custodian, administrator or similar official for that Party or a substantial part of its assets, and in either case that proceeding or petition continuing undismissed for thirty (30) or more Business Days or an order or decree approving or ordering any of the foregoing being entered; or |
| (ii) | that Party voluntarily commencing any such proceeding or filing any such petition, consenting to the institution of or failing to contest in a timely and appropriate manner any such proceeding or petition, applying for or consenting to any such appointment, filing an answer admitting the allegations of any such petition, making a general assignment for the benefit of its creditors, or taking any action for the purpose of effecting any of the foregoing; |
(e) by mutual written agreement of the Investor and the Major Shareholder; or
(f) if necessary to comply with applicable securities laws, listing rules or the requirements of any securities exchange in connection with a listing of the Shares of the Company on any securities exchange, as shall be confirmed in writing between the Investor and the Major Shareholder.
Section 13.03 Effect of Termination
(a) The termination of this Agreement shall not terminate or prejudice (i) any right or obligation arising out of or accruing under this Agreement attributable to events or circumstances occurring before that termination, or (ii) the provisions of this Article 13.
(b) The following provisions shall survive termination of this Agreement: Article 1 (Definitions and Interpretation), Article 12 (Representations and Warranties), this Article 13 (Effectiveness, Term and Termination) and Article 14 (Miscellaneous).
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Article 14. MISCELLANEOUS
Section 14.01 Waiver; Cumulative Rights
The failure or delay of a Party to require performance by the other Party of any provision of this Agreement, except for the failure or delay of a Party to comply with notice deadlines as included in this Agreement, shall not affect its right to require performance of such provision, unless such performance has been waived by such Party in writing. Any right granted to a Party hereunder, or by the applicable Laws, shall be cumulative, and may be exercised in whole or in part as accrued from time to time.
Section 14.02 Press Releases and Announcements
No Party shall, and each Party shall procure that its Affiliates shall not, issue any press release or make any public announcement or statement relating to this Agreement, the Transaction, the investment by the Investor in the Company or the commercial relationship between the Parties, or disclose the identity of the other Party or any of its Affiliates in connection with any of them, without the prior written approval of the other Party as to the fact, timing and contents of that release, announcement or statement; provided, however, that any Party may make any public disclosure, report, notice or announcement it believes in good faith is required by applicable Law, regulation, stock market rule or the Trading Rules, in which case the disclosing Party shall use reasonable efforts, to the extent legally permissible and reasonably practicable, to consult with the other Party as far in advance as reasonably practicable, to provide the other Party with a copy of the proposed disclosure prior to making the disclosure, to incorporate any reasonable comments of the other Party, to consult with and agree with the other Party the form, content and timing of the disclosure so far as legally permitted, to use reasonable efforts to obtain confidential treatment for any part of the information not required to be disclosed and for any commercially sensitive terms, including pricing, volumes, specifications and the identity of customers and to limit the disclosure to that portion of the information which the disclosing Party is advised is legally required to be disclosed. If any Party or any of its Affiliates is required to file, disclose or otherwise make publicly available this Agreement or any other Transaction Document, or any information concerning the Transaction, that Party shall, to the extent legally permitted and reasonably practicable: (i) notify the other Party as far in advance as reasonably practicable and provide it with a copy of the proposed filing or disclosure; (ii) give the other Party a reasonable opportunity, having regard to the applicable filing deadline, to identify information which it reasonably considers commercially sensitive; (iii) omit or redact, and seek confidential treatment for, all pricing terms and formulae, volumes, specifications, recovery rates, payment ratios, customer and supplier identities, mine and source information, technical and process information and other commercially sensitive information reasonably identified by the other Party, in each case to the fullest extent permitted by applicable Law and the relevant Governmental Authority or securities exchange; (iv) not voluntarily withdraw, waive or materially narrow any request for confidential treatment without the other Party’s prior written consent; (v) if any requested confidential treatment or redaction is rejected or questioned, notify and consult with the other Party before making the information publicly available and use reasonable efforts to preserve confidential treatment through any reasonably available amendment, reconsideration or similar process; and (vi) disclose no more information than is legally required. Limb (iii) does not require a Party to omit information where its external legal counsel advises that the information is legally required to be disclosed, and nothing in this Section requires a Party to fail to comply with a mandatory filing deadline.
Section 14.03 Severability
Every provision, and each part thereof, contained in this Agreement shall be severable and distinct from the other provisions. If any provision is invalid, illegal or unenforceable under the applicable Laws, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected. To the extent permitted by applicable Laws, the Parties hereby waive any provision of applicable Laws which renders any provision of this Agreement prohibitive or unenforceable in any respect.
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Section 14.04 Confidentiality
(a) During the term of this Agreement and for a period of five (5) years following termination, the Parties shall treat, and shall use commercially reasonable efforts to procure that their Affiliates and directors, officers, employees, agents, advisers and representatives shall treat, strictly confidential all non-public information received or obtained from the other Party as a result of entering into or performing this Agreement relating to (i) the existence and subject matter of this Agreement and (ii) the negotiations relating to this Agreement and (iii) the existence and terms of the Transaction, the investment by the Investor in the Company and the commercial relationship between the Parties and their respective Affiliates, in each case including the identity of the other Party and its Affiliates and including the existence and terms of this Agreement and of each other Transaction Document and the fact and content of the negotiations relating to them (“Confidential Information”). Confidential Information shall also include (A) non-public due diligence materials and other non-public information relating to the business of the Company provided by (or on behalf of) the Major Shareholder to the Investor prior to the Closing Date in connection with the SPA and (B) any Confidential Information of or related to the other Party or its Affiliates.
(b) The obligation of confidentiality under Section 14.04(a) does not apply to:
| (i) | disclosure of Confidential Information that is or comes into the public domain or becomes generally available to the public other than through the act or omission of or as a result of disclosure by or at the direction of a Party or any of its directors, officers, employees, agents, advisers and representatives in breach of this Agreement; |
| (ii) | disclosure of Confidential Information that was within the receiving Party’s possession prior to its being furnished to the receiving Party by or on behalf of the disclosing Party; |
| (iii) | disclosure, after giving prior notice to the other Party to the extent practicable under the circumstances or permissible by applicable Law and subject to any practicable arrangements to protect confidentiality, to the extent required under the rules of any stock exchange or by applicable Law or governmental regulations or judicial process or generally accepted accounting principles applicable to any Party; |
| (iv) | disclosure of Confidential Information acquired independently by a Party from a Third Party source not obligated, to the knowledge of such Party, to the Party disclosing Confidential Information to keep such information confidential; |
| (v) | disclosure to any professional adviser of a Party who has been retained to advise in relation to the transactions contemplated by the Transaction Documents, in each case only where such Persons are under non-disclosure obligations (which are no less onerous than those contained in this Agreement); provided, however, that the disclosing Party remains liable to the other Party for any breach of any non-disclosure obligation with respect to the disclosed Confidential Information by the respective disclosee; |
| (vi) | disclosure to existing and prospective shareholders, lenders, subscribers, financing sources, investors, underwriters, placement agents and transaction counterparties of a Party or their Affiliates, in each case only where such Persons are under non-disclosure obligations no less onerous than those contained in this Agreement; provided, however, that the disclosing Party remains liable to the other Party for any breach of any non-disclosure obligation with respect to the disclosed Confidential Information by the respective disclosee; and |
| (vii) | disclosure with the prior written approval of the other Party. |
(c) Each Party shall treat Confidential Information with no less care than that used to treat its own confidential information, which in no event shall be less than reasonable care.
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Section 14.05 Assignment
The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Unless otherwise provided in this Agreement, none of the rights or obligations hereunder of any Party may be assigned or delegated to any Person without the prior written consent of the other Party, save that a Party may assign its rights and obligations to a Permitted Transferee to which it Transfers Equity Securities in accordance with Article 4, subject to Section 11.04.
Section 14.06 Relationship between the Parties
None of the provisions of this Agreement shall be deemed to constitute a partnership or joint venture between the Parties, or to constitute either Party the agent of the other for any purpose. Save as specifically provided in this Agreement, no Party shall have authority to bind the other Party in any way.
Section 14.07 Notices
Any notice to be given under this Agreement shall be in writing and shall be delivered in the manner, and to the addresses and addressees, set out in Section 8.07 of the SPA, which applies to this Agreement as if set out in full in this Agreement. A Party may change its notice details by giving the other Party not less than five (5) Business Days’ prior written notice.
Section 14.08 Governing Law
This Agreement shall be governed by and construed in accordance with the Laws of Vietnam, without regard to conflict of law principles.
Section 14.09 Arbitration
(a) Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof, shall be referred to and finally resolved by arbitration at the Vietnam International Arbitration Centre (VIAC) in accordance with its in force Arbitration Rules (“Rules”), which Rules are deemed to be incorporated by reference into and as amended by this Section 14.09. Nothing in this Section shall prevent any Party from seeking interim, conservatory or injunctive relief from any court of competent jurisdiction before constitution of the Tribunal or where necessary to preserve rights pending determination of the dispute.
(b) Any arbitration shall be conducted by three (3) arbitrators (the “Tribunal”). One arbitrator shall be nominated by the claimant and one by the respondent and the two party-nominated arbitrators shall jointly nominate the third, who shall serve as chairman.
(c) The seat of arbitration shall be in Vietnam. The language of arbitration proceedings shall be English.
(d) Service of any notice of arbitration made pursuant to this Section 14.09 shall be in accordance with the Rules at the postal address given for the sending of notices under this Agreement and in a manner provided for in Section 14.07.
The award of the Tribunal shall be final and binding on the Parties (i.e. not subject to appeal).
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Section 14.10 Counterparts
This Agreement shall be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. Any Party may execute this Agreement by signing one (1) or more of such counterparts. Delivery of an executed counterpart of the signature page to this Agreement by electronic mail in portable format (“.pdf”) shall be effective as delivery of a manually executed counterpart of this Agreement.
Section 14.11 Expenses
Except as expressly provided herein, each Party shall bear its own fees and expenses incurred in connection with the negotiation, preparation and execution of this Agreement.
Section 14.12 Modification
This Agreement may not be amended, modified or supplemented except by a written instrument signed by both Parties.
Section 14.13 No Strict Construction
The Parties have participated jointly in the negotiation and drafting of this Agreement. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
Section 14.14 Entire Agreement
This Agreement and the other Transaction Documents constitute the entire agreement of the Parties in relation to the subject matter hereof and supersede all prior agreements, understandings and arrangements between them in relation to that subject matter. Nothing in this Section 14.14 shall limit any liability for fraud.
Without limiting the generality of the foregoing, it is agreed that:
(a) no Party has relied on any statement or representation which is not expressly incorporated in this Agreement or another Transaction Document and no Party shall have any claim or remedy in respect of any statement, representation, warranty or undertaking made by or on behalf of the other Party in relation to the Transaction which is not expressly set out in this Agreement or another Transaction Document;
(b) any terms or conditions implied by Law in any jurisdiction in relation to the Transaction are excluded to the fullest extent permitted by law or, if incapable of exclusion, any rights or remedies in relation to them are irrevocably waived;
(c) save as otherwise expressly provided in this Agreement, the only right or remedy of a Party in relation to any breach of any provision of this Agreement shall be as set forth herein and in accordance with the terms of this Agreement; and
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(d) save as otherwise expressly provided in this Agreement or any other Transaction Document, no Party shall owe any duty of care or have any liability in tort with respect to performance of any obligation set forth in this Agreement.
Section 14.15 Compliance with Vietnamese Law
(a) The Parties acknowledge that the Company is a public company whose Shares are registered for trading on UPCoM and that, following the Uplisting or any other listing of the Shares on a securities exchange, the Company will be a listed company subject to the rules of the relevant securities exchange, and that the Company is not a party to this Agreement.
(b) Nothing in this Agreement shall require the Major Shareholder or the Investor to take, or to procure that the Company or any of its Affiliates takes, any action that would (i) breach the applicable Law or the Company Charter or mandatory rules applicable to public companies or to companies whose shares are registered for trading on UPCoM or listed on any other securities exchange, including the rules of that exchange, (ii) breach the principle of equal treatment of shareholders of the same class, (iii) require any member of the BOD to act inconsistently with the duties owed by that member to the Company, or (iv) require the disclosure of MNPI otherwise than in accordance with applicable Law.
(c) If any provision of this Agreement cannot lawfully be given effect for any of the reasons set out in Section 14.15(b), the Major Shareholder shall use reasonable best efforts to procure an alternative lawful mechanism producing a substantially equivalent commercial result for the Investor to the fullest extent permitted by applicable Law.
Section 14.16 Further Assurance; Necessary Actions
To the extent it is within its powers, each Party agrees to perform and to procure the performance of, at its own cost unless otherwise agreed, all further acts and things, and execute and deliver or procure the execution and delivery of such further documents, as may be required by applicable Law or as may be necessary or reasonably desirable to implement and give effect to this Agreement.
Section 14.17 Third Parties
This Agreement does not create any rights, claims or benefits to any Person that is not a Party, nor does it create or establish any third party beneficiary hereto.
Reasonableness
Each Party confirms it has had the opportunity to receive independent legal advice relating to all the matters provided for in this Agreement and agrees that the provisions of this Agreement (including all other Transaction Documents) are fair and reasonable.
Section 14.19 Time is of the Essence
Time shall be of the essence of this Agreement as regards any dates, times and periods mentioned in this Agreement and as may be substituted for them by agreement in writing between the Parties.
[Signature pages follow]
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IN WITNESS WHEREOF, the Parties, acting through their duly authorized representatives, have caused this agreement to be signed in their respective names as of the date first above written.
| MASAN HORIZON COMPANY LIMITED | ||
| By: | /s/ Michael Hung Nguyen | |
| Name: | Michael Hung Nguyen | |
| Title: | Authorised Signatory | |
[Signature Page – Shareholders’ Agreement]
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| THE ELMET GROUP CO. | ||
| By: | /s/ Peter V. Anania | |
| Name: | Peter V. Anania | |
| Title: | Chairman and Chief Executive Officer | |
[Signature Page – Shareholders’ Agreement]
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Schedule 1
FORM OF ADHERENCE AGREEMENT
THIS ADHERENCE AGREEMENT is made on [●] by [●], a company incorporated in [●] with registered number [●] (the “New Shareholder”).
WHEREAS the New Shareholder is acquiring [●] Shares from [the Investor / the Major Shareholder] (the “Transferor”) and is required, as a condition of that Transfer, to adhere to the Shareholders’ Agreement dated [●] between The Elmet Group Co. and Masan Horizon Company Limited in relation to Masan High-Tech Materials Corporation (the “Shareholders’ Agreement”).
THE NEW SHAREHOLDER AGREES as follows:
(a) The New Shareholder confirms that it has been supplied with a copy of the Shareholders’ Agreement.
(b) The New Shareholder undertakes to each of the parties to the Shareholders’ Agreement to be bound by, and to perform, the Shareholders’ Agreement as if it had been an original party to it in place of, and to the extent of, the Transferor, and to assume the obligations of the Transferor under it in respect of the Shares Transferred.
(c) The New Shareholder confirms that it is not a Restricted Entity.
(d) The New Shareholder acknowledges that the Investor Rights are personal to the Investor and are not Transferred to it, except to the extent the Major Shareholder has consented in writing under Section 11.04 of the Shareholders’ Agreement.
(e) This Adherence Agreement is governed by the Laws of Vietnam and Section 14.09 of the Shareholders’ Agreement applies to any dispute arising out of or relating to it.
| For and on behalf of | ||
| [NEW SHAREHOLDER] | ||
| Name: | [●] | |
| Title: | [●] | |
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Exhibit 99.1
The Elmet Group to Invest Approximately $125 Million in Masan High-Tech Materials to Strengthen Tungsten Supply Chain
Two industry leaders formalize strategic relationship spanning the full tungsten value chain
Investment includes a 4.99% ownership stake and multi-year supply agreements across key production stages
Further advances the objectives of the United States Government’s $450 million committed investment announced September 14, 2026
PORTLAND, Maine — September 23, 2026 — The Elmet Group Co. (NASDAQ: ELMT) (“ELMT” or the “Company”), a U.S.-based provider of critical materials, precision-engineered components, and advanced high-energy systems, today announced a long-term strategic relationship with Vietnam-based Masan High-Tech Materials Corporation (UPCoM: MSR) (“MSR”) under which ELMT will acquire a 4.99% equity stake in MSR for $124.75 million. The acquisition formalizes a longstanding commercial relationship of more than 12 years, during which MSR has distinguished itself as a reliable supplier of high-quality tungsten materials and a valued strategic partner to ELMT.
Alongside the equity investment, the parties have entered into long-term commercial agreements under which MSR has agreed to supply ELMT with mined tungsten from its Nui Phao Mine and provide tungsten conversion services from its refining complex in Vietnam. The acquisition of an ownership stake and the commercial agreements establish a basis for ELMT and MSR to pursue increased refining throughput, new product development, and a broader international customer base.
“We value the opportunity to formalize our relationship with MSR, which furthers our progress toward a resilient tungsten supply chain,” said The Elmet Group CEO and Chairman Peter V. Anania. “During the 12 years we have worked alongside MSR, it has established itself as a proven tungsten producer with global significance. The Elmet Group is investing in the expansion of supply, refinement, and conversion of tungsten through this acquisition, building on the landmark investment we received from the United States Government to solidify our position as a vertically integrated, U.S.-based provider of critical materials.”
The technologies defining this century, including artificial intelligence, semiconductors and aerospace, cannot exist without tungsten,” said Chairman of Masan-High Tech Materials Danny Le. “The world can count on one hand the places that produce and refine it at scale. MSR is one of them. The Elmet Group has spent twelve years inside our supply chain. They know what we have built and what it would take to build again. That is what trust looks like when it converts into capital. Their investment speaks for itself. This is the beginning, and we will unlock MSR’s full value for shareholders in Vietnam and beyond.”
Robust and Complementary Capabilities
Together, the two companies connect the supply chain from ore to finished part: mining and concentration, chemical conversion, powder production, pressing and sintering, forming, and precision machining. MSR sits upstream, operating the Nui Phao Mine — one of the largest tungsten deposits in the world — alongside an integrated refining complex that converts concentrate into high-purity tungsten chemicals. ELMT sits downstream, transforming the materials processed by MSR into precision-engineered components for aerospace, defense, semiconductor, medical, industrial, and energy customers. Few relationships in the tungsten industry span such a broad range, and even fewer are reinforced by an equity relationship.
For ELMT, this formalized relationship is intended to secure long-term access to mined tungsten and conversion capacity at scale. For MSR, it is intended to secure a committed downstream industrial partner, additional third-party feedstock for its refinery, and a strategic shareholder with deep manufacturing expertise and access to diverse end markets.
These announcements follow the landmark investment ELMT received from the United States Government, announced on September 14, 2026. Each of these developments advance ELMT’s aim to become a robust provider of critical materials with capabilities and access throughout the full tungsten supply chain across key geographies around the world.
Completion of the equity investment is subject to customary closing conditions, including required regulatory and corporate approvals, and is expected to occur in the third quarter of 2026. The commercial agreements take effect upon completion. In connection with its new ownership position, ELMT will also receive one seat on MSR’s Board of Directors and support MSR’s planned uplisting to the Ho Chi Minh Stock Exchange, as well as its evaluation of an international listing.
About Masan High-Tech Materials
Masan High-Tech Materials is a leading global provider of advanced tungsten materials used across critical industries, including electronics, chemicals, automotive, aerospace, energy, and pharmaceuticals, serving customers worldwide. As the world’s largest producer of midstream and downstream tungsten products outside China, the Company operates the Nui Phao polymetallic mine and a state-of-the-art tungsten processing facility in Thai Nguyen Province, Vietnam. Masan High-Tech Materials is also a leading global producer of fluorspar and bismuth.
About The Elmet Group
The Elmet Group is a U.S.-based provider of critical materials, precision-engineered components, and advanced high-energy systems for the Aerospace, Defense and Government, Industrial, Medical, Semiconductor and Electronics, and Energy industries. The Company operates through three divisions: Critical Materials Components (CMC), Engineered Microwave Products (EMP), and Elmet Refining & Trading (ERT), leveraging materials science and precision engineering expertise to deliver high-performance solutions. The Elmet Group is dedicated to strengthening domestic manufacturing capabilities to support the U.S. and its Allies’ needs in both critical materials and advanced high-power microwave systems.
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Forward-looking statements disclaimer
The information in this press release includes forward-looking statements within the meaning of the federal securities laws, including the Private Securities Litigation Reform Act of 1995. These statements generally relate to future events or our future financial or operating performance and include statements regarding (i) the purchase price and closing timing of ELMT’s acquisition of a 4.99% stake in MSR, (ii) the ability of ELMT and MSR to successfully pursue increased refining throughput, new product development, and a broader international customer base; (iii) the ability of ELMT to become a vertically integrated, U.S.-based provider of critical materials with capabilities and access throughout the full Tungsten supply chain across key geographies around the world; (iv) the receipt of regulatory and corporate approvals to complete the investment; (v) Elmet’s receipt of a board seat on MSR’s Board of Directors and MSR’s planned uplisting to the Ho Chi Minh Stock Exchange; and (vi) ELMT’s future performance, expected outcomes and strategic initiatives.
When used in this press release, words such as “expect,” “project,” “estimate,” “believe,” “anticipate,” “intend,” “plan,” “seek,” “forecast,” “target,” “predict,” “may,” “should,” “would,” “could,” and “will,” the negative of these terms and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. Forward-looking statements are based on management’s current expectations and assumptions, and are subject to inherent uncertainties, risks and changes in circumstances that are difficult to predict. As a result, actual results could differ materially from those indicated in these forward-looking statements. When considering these forward-looking statements, you should keep in mind the risk factors and other cautionary statements in Elmet’s Registration Statement on Form S-1, as amended (File No. 333-294725) and subsequent filings Elmet makes with the Securities and Exchange Commission. Elmet undertakes no obligation and does not intend to update these forward-looking statements to reflect events or circumstances occurring after this press release. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this press release.
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