Dưới đây là một số trích đoạn trong chương về Việt Nam do YKVN viết trong ấn phẩm “M&A Report 2021” đăng trên IFLR. Xem ở đây hoặc ở đây
(Subtitles là do Ngữ đặt. Thứ tự các đoạn có thể khác với bản gốc. Bôi đậm để dễ nhớ. Sau này có thời gian sẽ viết bài giải thích một số khái niệm ở trong này hoặc các bạn cứ Google đi.)
Debt instruments
Foreign investors usually make use of ordinary shares, convertible loans and convertible bonds while use of preference shares is less common. Due to foreign exchange regulations, instruments are considered when making investment in Vietnamese dong rather than foreign currency. Convertible loans are more commonly denominated in foreign currency than convertible bonds. An investor's choice in use of convertible loans, convertible bonds and preference shares is driven by the equity/debt classification of the instrument. As investors usually benchmark against US dollars, foreign exchange indemnities are becoming more common.
National interest concerns
Regulators may also scrutinize deals where national interests are at play. An example of this relates to the acquisition by a Thai investor in a solar energy project that threatened national energy security due to excessive supply of solar energy in one region by potentially affecting the energy basket mix and strained energy network. In this instance, the prime minister requested the relevant miniseries to propose solutions to process national energy security.
(Về vấn đề điện, xem thêm bài này.)
Break fees
Break fees and reverse break fees are occasionally used, usually being 1-2% of the transaction value. In a number of instances, even a higher percentage of transaction value is used.
Price adjustment mechanisms
Although simplistic purchase price structures are commonly utilised, structures that are more complex do occur. Locked-box mechanisms (on the last account date) are common where the acquisition is for a majority, or all, of the target. Completion account mechanisms are common where there is an acquisition of a minority position.
Earn-outs and other forms of deferred consideration are not typical. Escrow accounts are utilised, and sellers may request that a deposit be paid. Warranty and indemnity (W&I) insurance remains relatively uncommon.
MAC
COVJD-19 has resulted in the growth of MAC clauses, which exclude the impacts of the pandemic, and allows for the shifting of risk from closing to signing to avoid walk-aways. In a number of instances, signing and closing occur almost simultaneously or the time gap between signing and closing is relatively short with less conditions precedent.
(YKVN cũng có bài “Big” MAC clause in Vietnam – The Covid-19 Make-over in M&A Deals về MAC.)
Governing law and dispute resolution
It is not unusual, where a foreign party is involved, for purchase agreements to be governed by Vietnamese law and referred to the Vietnam International Arbitration Center. For a high value or complex deal, this is usually accompanied by a foreign choice of dispute forum - in particular foreign arbitration. The typical combination is Vietnamese law and the Vietnam International Arbitration Center or the Singapore International Arbitration Center. Vietnam is a member of the New York Convention and Vietnamese courts are becoming more open to enforcement of foreign arbitral awards and judgments.
Lack of viable exit options
When considering the exit environment, large IPOs in Vietnam were rare in 2020 as the equity market has witnessed a slow-down in activities. As a result of this slow down, exits in trade sales and sales to financial sponsors are more common. The lack of a viable option to exit through qualified IPOs has also increased shareholder disputes, particularly in respect of internal rate of return (IRR) guaranteed exits.
Unique market norms
Vietnam's regulatory regime, as with its economy, has experienced rapid development over a comparatively short period of time and, unlike developed jurisdictions, authorities and even lawyers may have a different interpretation of law.
Although there is a strong level of certainty on most matters, problem solving may differ to some extent compared to regular approaches expected by foreign investors. However, often this works out for the better.
Regulatory approvals may require a greater degree of consultation with authorities than expected, though authorities are continuously improving their turn-around times and responsiveness.
Other frequently asked questions usually relate to deal structuring including offshore aspects, foreign ownership restrictions, regulatory approvals and licensing.
Overlooked areas, which need careful consideration, includes the time required for completion and sequencing of closing deliverables.