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Entry into a Standby Equity Subscription Agreement

Entry into a Standby Equity Subscription Agreement

On October 20, 2023 (the “Effective Date”), VinFast Auto Ltd. (“VinFast”), entered into a standby equity subscription agreement (the “Subscription Agreement”) with YA II PN, Ltd. (“Yorkville”), pursuant to which VinFast shall have the right, but not the obligation, to issue to Yorkville, and Yorkville shall have the obligation to subscribe for, ordinary shares in the capital of VinFast, no par value (the “ordinary shares”) for an aggregate subscription amount of up to $1.0 billion (the “Commitment Amount”), at any time during the commitment period of 36 months from the Effective Date, subject to certain conditions.

Each issuance by VinFast to Yorkville under the Subscription Agreement (an “Advance”) is subject to a maximum limit of an amount equal to 100% of the average of the daily trading volume of VinFast’s ordinary shares on the Nasdaq Stock Market (“Nasdaq”) for the five trading days immediately preceding the delivery of an Advance notice (“Advance Notice”) from VinFast to Yorkville. Each ordinary share to be issued to Yorkville from time to time under the Subscription Agreement will be issued at 97.5% of the Market Price (as defined below) for the three trading days commencing on the applicable Advance Notice date (“Pricing Period”). “Market Price” is defined as the lowest daily volume weighted average trading price (“VWAP”) of the ordinary shares on the Nasdaq during the Pricing Period, other than the daily VWAP on any day excluded pursuant to the terms of the Yorkville Subscription Agreement. With respect to each Advance, if VinFast notifies Yorkville of a minimum acceptable price per ordinary share with respect to such Advance, then if the VWAP of the ordinary shares is below the minimum acceptable price indicated by VinFast or if there is no VWAP, there will be an automatic reduction to the amount of the Advance by one third, and that day will be excluded from the Pricing Period. The total number of ordinary shares to be issued to Yorkville in respect of each Advance with any excluded days will be increased by such number of ordinary shares equal to the greater of the number of ordinary shares, if any, sold by Yorkville on such excluded days or such number of ordinary shares that Yorkville elects to subscribe for, in each case, at a subscription price per ordinary share equal to 97.5% of the minimum acceptable price, subject to the limitations set forth in the Subscription Agreement. There is no limit on the timing or frequency in which VinFast may deliver to Yorkville an Advance Notice, provided that VinFast shall have delivered all ordinary shares relating to all prior Advance Notices before issuing a new Advance Notice.

The Advances are subject to certain limitations, including that Yorkville shall not be obligated to subscribe for or acquire, and shall not subscribe for or acquire, any ordinary shares which, when aggregated with all other ordinary shares acquired by Yorkville under the Subscription Agreement, would result in it beneficially owning more than 4.99% of the ordinary shares then issued at the time of an Advance (the “Ownership Limitation”) or acquiring since the Effective Date under the Subscription Agreement more than 19.99% of the ordinary shares as of the Effective Date (the “Exchange Cap”). The Exchange Cap will not apply under certain circumstances, including, where VinFast has obtained shareholder approval for issuances of ordinary shares in excess of the Exchange Cap in accordance with the rules of Nasdaq or such issuances do not require shareholder approval under Nasdaq’s “minimum price rule.”

In connection with the entry into the Subscription Agreement, VinFast agreed to pay to YA Global II SPV, LLC, a subsidiary of Yorkville, a structuring fee in the amount of $25,000. In addition, as consideration for Yorkville’s subscription commitment, VinFast will pay a commitment fee (the “Commitment Fee”) comprising 800,000 ordinary shares (the “Commitment Shares”). The Commitment Shares shall be issued to Yorkville within two trading days from the date on which the Registration Statement is declared effective by the SEC (but no later than the 180 th day following the Effective Date, which date shall be automatically extended by the number of days that the SEC may not be operating at full capacity due to the shutdown of the U.S. federal government).

The Subscription Agreement will terminate automatically on the earlier of November 1, 2026 or when Yorkville has subscribed for ordinary shares equal to the Commitment Amount in accordance with the terms of the Subscription Agreement. In addition, VinFast has the right to unilaterally terminate the Subscription Agreement upon three business days’ prior written notice to Yorkville, provided that (i) there are no outstanding Advance Notices under which ordinary shares have yet to be issued, and (ii) VinFast has paid all amounts owed to Yorkville pursuant to the Subscription Agreement, including the Commitment Fee. Yorkville has covenanted not to engage in any direct or indirect short selling of ordinary shares during the term of the Subscription Agreement.

The Subscription Agreement contains customary representations, warranties, covenants, closing conditions and indemnification provisions. Sales under the Subscription Agreement may commence only after certain conditions have been satisfied, including the effectiveness of a registration statement on Form F-1 to be filed by VinFast covering the resale of the ordinary shares issued or to be sold by VinFast to Yorkville under the Subscription Agreement (the “Registration Statement”).

There are no limitations on the use of proceeds, financial or business covenants, restrictions on future financings, rights of first refusal, participation rights, penalties or liquidated damages in the Subscription Agreement. Any proceeds that VinFast receives under the Subscription Agreement are expected to be used for investments in research and development of products, services and technology, investments in sales and marketing and expansion of sales channels, investments in the development of our manufacturing facilities, working capital and general corporate purposes, which may include potential strategic investments and acquisitions, although we have not identified any specific investments or acquisition opportunities at this time.

The foregoing description of the Subscription Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Subscription Agreement, the form of which is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

EX-99.1 2 d559114dex991.htm EX-99.1 Exhibit 99.1

STANDBY EQUITY SUBSCRIPTION AGREEMENT

THIS STANDBY EQUITY SUBSCRIPTION AGREEMENT (this “ Agreement ”) dated as of October 20, 2023 is made by and between YA II PN, LTD. , a Cayman Islands exempt limited partnership (the “ Investor ”), and VINFAST AUTO LTD. (Company Registration No: 201501874G), a public company incorporated under the laws of Singapore (the “ Company ”).

WHEREAS, the ordinary shares of the Company, no par value (the “ Ordinary Shares ”) are listed for trading on the Nasdaq under the symbol “VFS;”

WHEREAS , the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall have the right to allot and issue to the Investor, from time to time as provided herein, and the Investor shall subscribe for, such number of Ordinary Shares determined in accordance with this Agreement, for an aggregate subscription price of, up to $1.0 billion; and

WHEREAS , the offer and sale of the Ordinary Shares issuable hereunder will be made in reliance upon Section 4(a)(2) under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “ Securities Act ”), or upon such other exemption from the registration requirements of the Securities Act as may be available with respect to any or all of the transactions to be made hereunder.

WHEREAS , in consideration of the Investor’s execution and delivery of this Agreement, the Company shall allot and issue to the Investor the Commitment Shares pursuant to and in accordance with Section 12.04.

NOW , THEREFORE , the parties hereto agree as follows:

Article I. Certain Definitions

“ Additional Shares ” shall have the meaning set forth in Section 2.01(d)(ii).

“ Adjusted Advance Amount ” shall have the meaning set forth in Section 2.01(d)(i).

“ Advance ” shall mean any allotment and issuance of Advance Shares by the Company to the Investor pursuant to Article II hereof.

“ Advance Date ” shall mean the first Trading Day after expiration of the applicable Pricing Period for each Advance.

“ Advance Notice ” shall mean a written notice in the form of Exhibit A attached hereto to the Investor executed by an officer of the Company and setting forth the number of Advance Shares that the Company desires to allot and issue to the Investor.

“ Advance Notice Date ” shall mean each date the Company is deemed to have delivered (in accordance with Section 2.01(b) of this Agreement) an Advance Notice to the Investor, subject to the terms of this Agreement.

“ Advance Shares ” shall mean the Ordinary Shares that the Company shall allot and issue to the Investor hereunder pursuant to an Advance, taking into account any adjustments in accordance with Section 2.01.

“ Affiliate ” shall have the meaning set forth in Section 3.07.

“ Agreement ” shall have the meaning set forth in the preamble of this Agreement.

“ Applicable Laws ” shall mean all applicable laws, statutes, rules, regulations, orders, executive orders, directives, policies, guidelines and codes having the force of law, whether local, national, or international, as amended from time to time, including without limitation (i) all applicable laws that relate to money laundering, terrorist financing, financial record keeping and reporting, (ii) all applicable laws that relate to anti-bribery, anti-corruption, books and records and internal controls, including the United States Foreign Corrupt Practices Act of 1977, and (iii) any Sanctions laws.

“ Average Price ” shall mean a price per Share equal to the quotient obtained by dividing (i) the aggregate gross subscription price paid by the Investor for all Shares subscribed for pursuant to this Agreement, by (ii) the aggregate number of Shares allotted and issued pursuant to this Agreement.

“ Black Out Period ” shall have the meaning set forth in Section 6.02(a).

“ Business Day ” means a day other than a Saturday, Sunday or other day on which commercial banks in the Singapore, Ho Chi Minh City or New York, New York are authorized or required by Applicable Laws to close.

“ Closing ” shall have the meaning set forth in Section 2.02.

“ Commitment Amount ” shall mean $1.0 billion of Ordinary Shares.

“ Commitment Fee ” shall have the meaning set forth in Section 12.04.

“ Commitment Period ” shall mean the period commencing on the Effective Date and expiring upon the date of termination of this Agreement in accordance with Section 10.01.

“ Commitment Shares ” shall have the meaning set forth in Section 12.04.

“ Company ” shall have the meaning set forth in the preamble of this Agreement.

“ Company Indemnitees ” shall have the meaning set forth in Section 5.02.

“ Condition Satisfaction Date ” shall have the meaning set forth in Section 7.01.

“ Current Report ” shall have the meaning set forth in Section 6.12.

“ Daily Traded Amount ” shall mean the daily trading volume of the Company’s Ordinary Shares on the Principal Market during regular trading hours as reported by Bloomberg L.P.

“ Effective Date ” shall mean the date hereof.

“ Environmental Laws ” shall have the meaning set forth in Section 4.13.

“ Exchange Act ” shall mean the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“ Exchange Cap ” shall have the meaning set forth in Section 2.01(c)(iii).

“ Excluded Day ” shall have the meaning set forth in Section 2.01(d)(i).

“ GAAP ” shall have the meaning set forth in Section 4.06.

“ Hazardous Materials ” shall have the meaning set forth in Section 4.13.

“ Indemnified Liabilities ” shall have the meaning set forth in Section 5.01.

“ Investor ” shall have the meaning set forth in the preamble of this Agreement.

“ Investor Indemnitees ” shall have the meaning set forth in Section 5.01.

“ Market Price ” shall mean the lowest of the daily VWAPs of the Ordinary Shares during the relevant Pricing Period, other than the daily VWAP on any Excluded Days.

“ Material Adverse Effect ” shall mean any event, occurrence or condition that has had or would reasonably be expected to have (i) a material adverse effect on the legality, validity or enforceability of this Agreement or the transactions contemplated herein, (ii) a material adverse effect on the results of operations, assets, business or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under this Agreement.

“ Material Outside Event ” shall have the meaning set forth in Section 6.08.

“ Maximum Advance Amount ” in respect of each Advance Notice means an amount equal to one hundred percent of the average of the Daily Traded Amount during the five Trading Days immediately preceding an Advance Notice.

“ Minimum Acceptable Price ” or “ MAP ” shall mean the minimum price per Ordinary Share notified by the Company to the Investor in each Advance Notice, if applicable.

“ OFAC ” shall have the meaning set forth in Section 4.28.

“ Ordinary Shares ” shall have the meaning set forth in the recitals of this Agreement.

“ Ownership Limitation ” shall have the meaning set forth in Section 2.01(c)(i).

“ Person ” shall mean an individual, a corporation, a partnership, a limited liability company, a trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“ Plan of Distribution ” shall mean the section of a Registration Statement disclosing the plan of distribution of the Shares.

“ Pricing Period ” shall mean the three consecutive Trading Days commencing on the Advance Notice Date.

“ Principal Market ” shall mean the Nasdaq Stock Market (including the Capital Market, Global Market and/or the Global Select Market) (the “ Nasdaq ”); provided however, that in the event the Ordinary Shares are ever listed or traded on the New York Stock Exchange, or the NYSE American, then the “Principal Market” shall mean such other market or exchange on which the Ordinary Shares are then listed or traded to the extent such other market or exchange is the principal trading market or exchange for the Ordinary Shares.

“ Prospectus ” shall mean any prospectus (including, without limitation, all amendments and supplements thereto) used by the Company in connection with a Registration Statement.

“ Prospectus Supplement ” shall mean any prospectus supplement to a Prospectus filed with the SEC from time to time pursuant to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein, including, without limitation, any prospectus supplement to be filed in accordance with Section 6.01 hereof.

“ Registrable Securities ” shall mean (i) the Shares, and (ii) any securities issued or issuable with respect to any of the foregoing by way of exchange, share dividend or share split or in connection with a combination or consolidation of shares, recapitalization, merger, consolidation or other reorganization or otherwise.

“ Registration Limitation ” shall have the meaning set forth in Section 2.01(c)(ii).

“ Registration Statement ” shall mean a registration statement on Form F-1 or Form F-3 or on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate, and which form shall be available for the registration of the resale by the Investor of the Registrable Securities under the Securities Act, which registration statement provides for the resale from time to time of the Shares as provided herein.

“ Regulation D ” shall mean the provisions of Regulation D promulgated under the Securities Act.

“ Sanctions ” shall have the meaning set forth in Section 4.28.

“ Sanctioned Countries ” shall have the meaning set forth in Section 4.28.

“ SEC ” shall mean the U.S. Securities and Exchange Commission.

“ SEC Documents ” shall have the meaning set forth in Section 4.05.

“ Securities Act ” shall have the meaning set forth in the recitals of this Agreement.

“ Settlement Document ” shall have the meaning set forth in Section 2.02(a).

“ Shares ” shall mean the Commitment Shares and the Advance Shares.

“ Subsidiaries ” shall mean any “significant subsidiary” (as defined in Article 1, Rule 1-02 of Regulation S-X under the Exchange Act).

“ Total Price ” shall mean the total price payable for the Advance Shares to be allotted and issued under each Advance, being (a) in respect of each Advance without any Excluded Days, 97.5% of the Market Price multiplied by the total number of Advance Shares to be allotted and issued under such Advance; or (b) in respect of each Advance with any Excluded Day(s) (i) 97.5% of the Market Price multiplied by the Adjusted Advance Amount; plus (ii) where such Advance Amount includes Additional Shares, 97.5% of the MAP in effect with respect to such Advance Notice multiplied by the total number of Additional Shares.

“ Trading Day ” shall mean any day during which the Principal Market shall be open for business.

“ Transaction Documents ” shall have the meaning set forth in Section 4.02.