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THE MINISTRY OF
FINANCE
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SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom - Happiness
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No. 15/2007/QD-BTC
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Hanoi, March 19,
2007
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DECISION
ISSUING
THE MODEL CHARTER APPLICABLE TO COMPANIES LISTING ON THE STOCK
EXCHANGE/SECURITIES TRADING CENTRE
THE MINISTER OF FINANCE
Pursuant to the Law on Enterprises 60/2005/QH11
of the National Assembly dated 29 November 2005;
Pursuant to the Law on Securities 70/2006/QH11 of the National Assembly dated
29 June 2006;
Pursuant to Decree 77/2003/ND-CP of the Government dated 1 July 2003 on the
functions, duties, powers and organizational structure of the Ministry of
Finance;
DECIDES:
Article 1. To
issue with this Decision the model charter applicable to companies listing on
the Stock Exchange/Securities Trading Centre.
Article 2. This
Decision shall be of full force and effect fifteen (15) days from the date of
its publication in the Official Gazette.
Article 3. The
Head of the Office of the Ministry of Finance, the Chairman of the State
Securities Commission, heads of relevant units under the Ministry of Finance,
listing companies and other organizations and individuals involved shall be
responsible for implementation of this Decision.
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FOR THE MINISTER OF
FINANCE
DEPUTY PRIME MINISTER
Tran Xuan Ha
MODEL CHARTER
APPLICABLE
TO COMPANIES LISTING ON THE STOCK EXCHANGE/SECURITIES TRADING CENTRE
(Issued with Decision 15/2007/QD-BTC of the Minister of Finance dated 19
March 2007)
The charter of any company must contain at
least the provisions of this model charter (excluding article 27) but shall not
be limited to the contents of this model charter
CHARTER
OF SHAREHOLDING COMPANY
(Name of company)
TABLE OF CONTENTS
INTRODUCTION
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Article 1: Definitions........................................................................................................................... 7
II. NAME, FORM, OFFICE, BRANCH,
REPRESENTATIVE OFFICE AND DURATION OF OPERATION OF THE COMPANY ......................................................................................................................................................... 7
Article 2: Name, form, office, branch,
representative office and operational duration ............................ 7
III. OBJECTIVES AND SCOPE OF BUSINESS AND
OPERATION OF THE COMPANY ......................... 8
Article 3: Objectives of the company ................................................................................................. 8
Article 4: Scope of business and operation ........................................................................................ 8
IV. CHARTER CAPITAL, SHARES, FOUNDING
SHAREHOLDERS ...................................................... 8
Article 5: Charter capital, shares, founding
shareholders ..................................................................... 8
Article 6: Share certificates................................................................................................................. 9
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Article 8: Assignment of shares ....................................................................................................... 10
Article 9: Withdrawal of shares ........................................................................................................... 0
V. STRUCTURE OF ORGANIZATION, MANAGEMENT AND
CONTROL ............................................. 11
Article 10: Structure of organization and
management ....................................................................... 11
VI. SHAREHOLDERS AND THE GENERAL MEETING OF
SHAREHOLDERS ..................................... 11
Article 11: Rights of shareholders ...................................................................................................... 1
Article 12: Obligations of shareholders ............................................................................................. 12
Article 13: General Meeting of Shareholders ..................................................................................... 12
Article 14: Rights and duties of the General
Meeting of Shareholders.................................................. 13
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Article 16: Change of rights ............................................................................................................. 15
Article 17: Convening the General Meeting of
Shareholders, agenda and notice of the General Meting of Shareholders 16
Article 18: Conditions for conducting the General
Meeting of Shareholders ........................................ 17
Article 19: Procedures for conducting and voting
at the General Meeting of Shareholders ................... 17
Article 20: Approval of resolutions of the
General Meeting of Shareholders ........................................ 19
Article 21: Authority and procedures for
obtaining written opinions of shareholders to approve resolutions of the
General Meeting of Shareholders................................................................................................................... 19
Article 22: Minutes of the General Meeting of
Shareholders................................................................ 21
Article 23: Request for rescission of resolutions
of the General Meeting of Shareholders..................... 21
VII. THE BOARD OF MANAGEMENT................................................................................................ 21
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Article 25: Powers and duties of the Board of
Management ............................................................... 22
Article 26: Chairman and deputy chairman of the
Board of Management ............................................ 24
Article 27: Alternate [replacement or
substitute]1 members of the Board of Management .................... 25
Article 28: Meetings of the Board of Management ............................................................................. 25
VIII. CHIEF EXECUTIVE OFFICER, OTHER MANAGERS
AND SECRETARY OF THE COMPANY ...... 28
Article 29: Organization of management apparatus ............................................................................ 28
Article 30: Managers......................................................................................................................... 28
Article 31: Appointment, removal, duties and
powers of the managing director or chief executive officer 28
Article 32: Secretary of the company ................................................................................................ 30
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Article 33: Responsibility to be prudent ............................................................................................ 30
Article 34: Responsibility to be honest and avoid
conflicts of interests .............................................. 30
Article 35: Liability for loss, and compensation ................................................................................. 31
X. THE INSPECTION COMMITTEE................................................................................................... 32
Article 36: Members of the Inspection Committee ............................................................................. 32
Article 37: The Inspection Committee ................................................................................................ 33
XI. RIGHT TO INVESTIGATE BOOKS AND RECORDS OF
THE COMPANY ....................................... 34
Article 38: Right to investigate books and
records ............................................................................ 34
XII. STAFF AND THE TRADE UNION................................................................................................ 34
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XIII. DISTRIBUTION OF PROFIT....................................................................................................... 34
Article 40: Dividends........................................................................................................................ 34
Article 41: Other issues relating to the
distribution of profit................................................................. 35
XIV. BANK ACCOUNTS, RESERVE FUND, FINANCIAL
YEAR AND ACCOUNTING SYSTEM ............. 35
Article 42: Bank accounts ................................................................................................................ 35
Article 43: Reserve fund .................................................................................................................. 35
Article 44: Financial year .................................................................................................................. 35
Article 45: Accounting system .......................................................................................................... 36
XV. ANNUAL STATEMENTS, RESPONSIBILITIES FOR
DISCLOSURE OF INFORMATION AND PUBLIC ANNOUNCEMENT ........................................................................................................................................................ 36
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Article 47: Disclosure of information and public
announcement.......................................................... 36
XVI. AUDITING THE COMPANY ....................................................................................................... 36
Article 48: Auditing........................................................................................................................... 36
XVII. SEAL...................................................................................................................................... 37
Article 49: Seal ................................................................................................................................ 37
XVIII. TERMINATION OF OPERATION AND LIQUIDATION................................................................ 37
Article 50: Termination of operation................................................................................................... 37
Article 51: Cases of deadlock between members of
the Board of Management and shareholders........ 37
Article 52: Extension of duration of operation.................................................................................... 38
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XIX. INTERNAL DISPUTE RESOLUTION.......................................................................................... 38
Article 54: Internal dispute resolution................................................................................................
38
XX. ADDITION TO AND AMENDMENT OF THE CHARTER................................................................. 39
Article 55: Additions to and amendment of this
Charter...................................................................... 39
XXI. EFFECTIVE DATE ................................................................................................................... 39
Article 56: Effective date................................................................................................................. .39
Article 57: Signatures of founding shareholders
or legal representative of the company....................... 39
INTRODUCTION
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I. DEFINITION OF
TERMS IN THE CHARTER
Article 1.
Definitions
1. In this charter, the following terms shall
be construed as follows:
a. “Charter capital” means the amount of capital
contributed by all shareholders and stated in article 5 of this Charter.
b. “Law on Enterprises” means the Law on
Enterprises 60-2005-QH11 passed by the National Assembly on 29 December 2005.
c. “Date of establishment” means the date the
Company is granted a business registration certificate.
d. “Manager” means the managing director or
chief executive officer, deputy managing director or deputy chief executive officer,
chief accountant and any other manager in the Company approved by the Board of
Management.
e. “Related person” means an individual or
organization stipulated in article 4.17 of the Law on Enterprises.
f. “Duration of operation” means the duration
of operation of the Company stated in article 2 of this Charter and the
duration of operation (if any) as approved by the the General Meeting of
Shareholders in a resolution.
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2. In this Charter, any references to one or more
other provisions or documents shall include amendments to or documents
replacing such provisions or documents.
3. Headings (chapters and articles of this Charter)
are for convenience only and shall not affect the contents of this Charter.
4. Any words or terms defined in the Law on
Enterprises shall have the same meaning in this Charter (if such word or term
is not contrary to the subject or context).
II. NAME, FORM, OFFICE,
BRANCH, REPRESENTATIVE OFFICE AND OPERATIONAL DURATION OF THE COMPANY
Article 2. Name,
form, office, branch, representative office and duration of operation of the
Company:
1. Name of the Company:
Vietnamese name:
English name:
Transaction name:
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2. The Company is a shareholding company
having legal entity status in compliance with the current law of Vietnam.
3. Registered office of the Company is:
Address:
Telephone:
Fax:
[Email]:
Website:
4. (The chairman of the Board of Management
or the managing director or chief executive officer shall be the legal
representative of the Company.)
5. The Company may establish its branch and
representative office in the locality in which the Company conducts business in
order to carry out the objectives of the Company in compliance with the
resolutions of the Board of Management and as permitted by law.
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III. OBJECTIVES AND SCOPE
OF BUSINESS AND OPERATION OF THE COMPANY
Article 3. Objectives
of the Company:
1. Lines of business of the Company are
……………..
2. Objectives of the Company are……………………..
Article 4. Scope of
business and operation:
1. The Company shall be permitted to make
plans and carry out all business activities in accordance with the its business
registration certificate and this Charter and in compliance with current law,
and shall be permitted to apply appropriate measures to achieve the objectives
of the Company.
2. The Company may carry out business
activities in other fields permitted by law and approved by the Board of
Management.
IV. CHARTER CAPITAL,
SHARES, FOUNDING SHAREHOLDERS
Article 5. Charter
capital, shares, founding shareholders:
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The total amount of charter capital of the
Company shall be dividied into ….. shares with …… par value.
2. The Company may increase its charter
capital with approval of the General Meeting of Shareholders granted in
accordance with law.
3. Shares of the Company as at the date of
approval of this Charter comprise ordinary shares, (controlling shares)
(special shares) and (preference shares). The rights and obligations attached
to (each class) of share shall be as stipulated in article 11.
4. The Company may issue other classes of
preference share after approval of the General Meeting of Shareholders is
obtained in accordance with law.
5. (Name, address, number of shares and other
details about a founding shareholder in accordance with the Law on Enterprises
are stated in the attached Appendix …. This Appendix is an integral part of
this Charter).
6. Existing shareholders shall be given
priority to be offered ordinary shares for sale in the ratio corresponding to
their ownership percentage of ordinary shares in the Company, except where
otherwise stipulated by the General Meeting of Shareholders. The Company must
provide a notice of the offer for sale of shares which specifies the number of
shares to be offered for sale and an appropriate period for subscription (at
least twenty business days) so that shareholders may subcribe to purchase. The
shares for which shareholders may not subscribe to purchase shall be decided by
the Board of Management of the Company. The Board of Management may allocate
such shares to entities in accordance with the conditions and manner which the
Board of Management thinks appropriate, but shall not be permitted to sell such
shares on conditions more favourable than the conditions offered to existing
shareholders, except where otherwise agreed by the Board of Management or where
shares are sold via the Stock Exchange/Securities Trading Centre.
7. The Company shall be permitted to purchase
its own shares (including redeemable preference shares) in the manner
stipulated in this Charter and the current law. Ordinary shares redeemed by the
Company shall be fund shares which may be offered for sale by the Board of
Management in a manner complying with this Charter, the Law on Securities and
relevant guidelines.
8. The Company may issue other classes of
securities after the General Meeting of Shareholders provides unanimous
approval in writing in accordance with the law on securities and securities
market.
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1. Shareholders of the Company shall be
granted share certificates corresponding to the number of shares and the class
of owned shares, except where stipulated in clause 7 of this article.
2. Share certificates must bear the seal of
the Company and signature of the legal representative of the Company in
accordance with the Law on Enterprises. A share certificate must specify the
number and class of shares held by the shareholder, the full name of the
shareholder (in the case of a named share certificate) and other information in
accordance with the Law on Enterprises. Each named share certificate shall
represent only one class of shares.
3. A shareholder shall be granted a share
certificate within a period of …… from the date of lodging a complete
application for transfer of ownership of shares in accordance with the rules of
the Company or within a period of two months (or a longer period in accordance
with the terms of the issue) from the date of full payment of the purchase
price of shares as stipulated in the plan for issue of shares of the Company. A
shareholder shall not be obliged to pay the cost of printing the share
certificate or any [other] costs to the Company.
4. Where only a number of named shares in a
named share certificate are transferred, the old share certificate shall be
rescinded and a new share certificate recording the remaining shares shall be
granted free-of-charge.
5. Where a named share certificate is
damaged, erased, lost, stolen or destroyed, the shareholder may be granted a
new share certificate provided that he/she presents proof of his/her ownership
of shares and has paid all relevant costs to the Company.
6. Holders of bearer share certificates shall
be responsible to manage their share certificates and the Company shall not be
liable where such share certificates are stolen or used for fraudulent
purposes.
7. The Company shall be permitted to issue
named shares which do not take the form of certificates. The Board of
Management may issue documents allowing named shares (whether or not such
shares take the form of certificates) to be assigned and a document on the
assignment of such shares shall not necessarily be required.
Article 7 Other
securities certificates:
Bond certificates or other securities
certificates of the Company (excluding offer letters, temporary certificates
and similar documents) shall be issued with the seal and sample signature of
the legal representative of the Company, except where otherwise stipulated by
the terms and conditions of the issue.
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1. All shares may be assigned freely except
where this Charter and the law stipulate otherwise. Shares listed on the Stock
Exchange/Securitites Trading Centre shall be assigned in accordance with the
law on securitites and securitites market of the Stock Exchange/Securitites
Trading Centre.
2. Shares which have not yet been fully paid
for shall not be assignable nor entitled to dividends.
Article 9. Withdrawal
of shares:
1. Where a shareholder fails to pay in full and
on time the amount payable to purchase shares, the Board of Management shall
notify and have the right to request such shareholder to pay the unpaid amount together
with interest on such sum, plus costs arising from failure to pay in full to the
Company in accordance with regulations.
2. An announcement requiring the above-mentioned
payment must specify the new time-limit for payment (at least seven days from the
date on which the announcement is sent) and place for payment, and state that
on failure to make payment as required then the number of shares which have not
yet been fully paid for shall be withdrawn.
3. If the requirements of the above-mentioned
announcement are not satisfied, the Board of Management shall have the right to
withdraw the relevant number of shares before all amounts payable including
interest and relevant costs are paid for in full.
4. Any withdrawn shares shall be the assets
of the Company. The Board of Management may directly sell or authorize to sell
or re-distribute such shares to, or resolve them in favour of, the individuals
who owned such withdrawn shares or to other entities, on conditions and in the
manner the Board of Management considers appropriate.
5. Shareholders holding withdrawn shares
shall be required to waive their shareholdership status with respect to such
shares, but shall still be required to pay all relevant amounts plus
propotional interest at the rate as at the time of withdrawal (not exceeding
….% per year), from the date of withdrawal up to the date of payment, in
accordance with a decision of the Board of Management. The Board of Management shall
have full power to make a decision on enforcement of payment of amounts payable
as at the time of withdrawal, or may make a decision on remission of part or all
of such amounts.
6. An announcement on withdrawal shall be
sent to the holders of the shares which are to be withdrawn prior to the time of
withdrawal. The withdrawal shall remain valid even if there is a mistake or
carelessness during the course of sending the announcement.
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Article 10. Structure
of organization and management:
The structure of organization and management
of the Company shall comprise:
a. General Meeting of Shareholders;
b. Board of Management;
c. Managing director or chief executive
officer;
d. Inspection Committee.
VI. SHAREHOLDERS AND
GENERAL MEETING OF SHAREHOLDERS
Article 11. Rights of
shareholders:
1. Shareholders are the owners of the Company
and shall have the rights and obligations corresponding to the number and
classes of shares owned by them. Shareholders shall only be liable for debts and
other property obligations of the Company within their capital contribution to the
Company.
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a. To attend the General Meeting of
Shareholders and to exercise the right to vote directly or via an authorized
representative;
b. To receive dividends;
c. To freely assign, in accordance with this
Charter and current law, shares which have been fully paid for;
d. To be given priority in subscribing for
new shares offered for sale in proportion to the number of ordinary shares each
shareholder holds in the Company;
e. To inspect information relating to the
shareholders included in the list of shareholders who are qualified to attend the
General Meeting of Shareholders, and to request amendment of incorrect
information;
f. To sight, look up and make an extract or
copy of this Charter, the book of minutes of meetings of the General Meeting of
Shareholders and resolutions of the General Meeting of Shareholders;
g. If the company is dissolved, to receive a part
of the remaining assets in proportion to the number of shares contributed as
capital to the Company after the Company has paid out its creditors and
shareholders of other classes in accordance with law;
h. To request the Company to redeem shares as
stipulated in article 90.1 of the Law on Enterprises;
i. Other rights stipulated in this Charter
and by law.
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3. A shareholder or a group of shareholders
holding more than five (5) per cent of the total ordinary shares for a
consecutive period of six months or more shall have the following rights:
a. To nominate candidates to the Board of Management
and the Inspection Committee in accordance with articles 24.3 and 36.2
respectively;
b. To request the convening of a General
Meeting of Shareholders;
c. To inspect and receive a copy or an
extract of the list of shareholders who have the right to attend and vote at
the General Meeting of Shareholders;
d. To request the Inspection Committee to inspect
each particular issue relating to the management and administration of the
operation of the Company when considered necessary.
This request must be in writing, must contain
the full name, permanent address, nationality, number of people’s identity card,
passport or other lawful personal identification of a shareholder being an
individual; or the name, permanent address, nationality, number of the decision
on establishment or number of business registration of a shareholder being an
organization; the number of shares and time of registration of shares of each
shareholder, total number of shares of the group of shareholders and the
percentage of ownership of the total number of shares of the Company; and issues
to be inspected and purpose of the inspection;
e. Other rights stipulated in this Charter.
Article 12.
Obligations of shareholders: Shareholders shall have the following obligations:
1. To comply with this Charter and the rules
of the Company; to observe resolutions of the General Meeting of Shareholders
and the Board of Management;
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3. To provide the correct address when he or
she registers subscription for shares;
4. To perform other obligations in accordance
with current law;
5. To be personally liable when he or she
performs one of the following acts in any form in the name of the Company:
a. Breaches the law;
b. Conducts business and other transactions
for the personal benefit of him/herself or of other organizations or
individuals;
c. Pays undue debts prior to a time when the
Company could face financial danger.
Article 13. General
Meeting of Shareholders:
1. The General Meeting of Shareholders is the
highest competent authority of the Company. The annual General Meeting of
Shareholders shall be organized once per year. The General Meeting of
Shareholders must hold an annual meeting within a time-limit of four months
from the end of a financial year.
2. The Board of Management shall convene the
annual General Meeting of Shareholders and shall choose an appropriate place.
The annual General Meeting of Shareholders shall make decisions on issues in
accordance with law and this Charter, and in particular shall approve the
annual financial statements and the financial budget for the next financial
year.
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a. The Board of Management considers it
necessary to do so in the interests of the Company;
b. The annual balance sheet, six-monthly or
quarterly statements or audited reports of a financial year reflect that half
of the Charter capital has been lost;
c. Where the number of members of the Board
of Management is less than the number of members required by law or less than
half of the number of members required by this Charter;
d. A shareholder or a group of shareholders
as stipulated in article 11.3 of this Charter may request to convene a General
Meeting of Shareholders by a written recommendation. The written recommendation
must clearly state the reason and purpose of the meeting, and must be signed by
the relevant shareholders (the written recommendation may be made in multiple
copies in order to facilitate the signatures of all relevant shareholders);
e. The Inspection Committee may request to
convene a meeting if the Inspection Committee has reason to believe that the
members of the Board of Management or senior managers have seriously breached
their obligations as stipulated in article 119 of the Law on Enterprises or
that the Board of Management acts or intends to act beyond its powers;
f. Other cases as stipulated by law and this
Charter.
4. Convening an ad hoc [extraordinary]
General Meeting of Shareholders:
a. The Board of Management must convene a
meeting of the General Meeting of Shareholders within a time-limit of thirty
days from the date there are [only] the remaining members of the Board of
Management as stipulated in clause 3(c) of this article or from the date of
receipt of the request stated in clauses 3(d) and 3(e) of this article;
b. Where the Board of Management fails to
convene a meeting of the General Meeting of Shareholders in accordance with
clause 4(a) of this article, then within the following thirty (30) days the
Inspection Committee shall replace the Board of Management in convening the
General Meeting of Shareholders in accordance with clause 5 of article 97 of
the Law on Enterprises;
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In this case, the shareholder or group of
shareholders convening the General Meeting of Shareholders may request the
business registration office to supervise the convening and conduct of the
meeting if they consider it necessary;
d. All expenses for convening and conducting
a meeting of the General Meeting of Shareholders shall be reimbursed by the
Company. Such expenses shall not include costs, including travel and
accommodation costs, incurred by the shareholders when they attend the General
Meeting of Shareholders.
Article 14. Rights
and duties of the General Meeting of Shareholders:
1. The annual General Meeting of Shareholders
shall have the right to discuss and approve the following documents:
a. Annual audited financial statements;
b. Reports of the Inspection Committee;
c. Reports of the Board of Management;
d. Short-term and long-term developmental
plans of the Company.
2. The annual General Meeting of Shareholders
and an ad hoc [extraordinary] General Meeting of Shareholders shall approve in
writing the following issues:
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b. Rate of dividends paid annually for each
class of shares in compliance with the Law on Enterprises and the rights
attached to each such class of shares. The rate of dividends shall not be
higher than the rate proposed by the Board of Management after the Board of
Management has consulted the shareholders at the General Meeting of
Shareholders;
c. Number of members of the Board of
Management;
d. Selection of an auditing company;
e. Appointment, dismissal and replacement of
members of the Board of Management and of the Inspection Committee and approval
of the appointment of the managing director or chief executive officer by the
Board of Management;
f. Total remuneration of the members of the
Board of Management and reports on remuneration of the Board of Management;
g. Amendment of and addition to this Charter;
h. Classes of shares and number of new shares
to be issued for each class of shares and the assignment of shares by founding
members within the first three years of the date of establishment;
i. Division, separation, merger,
consolidation or conversion of the Company;
j. Re-organization and dissolution
(liquidation) of the Company and appointment of a liquidator;
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l. Decisions relating to the sale of assets
of the Company or its branches or the purchase of assets valued at fifty (50)
per cent or more of the total value of assets of the Company and its branches
recorded in the most recent financial statements;
m. Redemption by the Company of ten (10) per
cent or more of any one class of issued shares;
n. The managing director or chief executive
officer concurrently holding the post of chairman of the Board of Management;
o. The company or its branches entering into
contracts with parties stipulated in article 120.1 of the Law on Enterprises
valued at twenty (20) per cent or more of the total value of assets of the
Company and its branches recorded in the most recent financial statements;
p. Other issues as stipulated in article 14.2
of this Charter and other rules of the Company.
3. A shareholder shall not be permitted to
vote in the following cases:
a. Contracts stipulated in article 14.2 of
this Charter to which such shareholder or a related person of such shareholder
is a party;
b. Purchase of shares by the shareholder or a
related person of such shareholder.
4. All resolutions and issues included in the
agenda must be discussed and voted on at the General Meeting of Shareholders.
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1. Shareholders entitled to attend the
General Meeting of Shareholders in accordance with law shall directly attend or
authorize their representatives to attend. In a case where more than one
authorized representative is appointed, then the specific number of shares and
the specific number of votes of each representative must be specified.
2. The authorization for a representative to
attend the General Meeting of Shareholders must be made in writing on the form
stipulated by the Company and must bear signatures in accordance with the
following provision:
a. Authorization to represent a shareholder
being an individual must bear the signatures of both that shareholder and the
person authorized to attend the meeting;
b. Authorization on behalf of a shareholder
being an organization which is the principal [of the power of attorney] must
bear the signatures of the authorized representative, of the legal
representative of the shareholder and of the person authorized to attend the
meeting;
c. In other cases the authorization must bear
the signatures of the legal representative of the shareholder and of the person
authorized to attend the meeting.
Any person authorized to attend a General
Meeting of Shareholders must submit his or her written authorization prior to
entering the meeting room.
3. Where a lawyer on behalf of a principal
signs a written appointment of a representative, the designation of such
representative shall be deemed to be effective only if the written appointment
is presented with a letter of authorization to the lawyer or a copy of such
letter (in a case where such lawyer has not been registered with the Company).
4. Except for the case stipulated in clause 3
of this article, the voting slip of the person authorized to attend a meeting
within the scope of his/her authorization shall remain effective in any one of
the following cases:
a. The principal dies, or his capacity for
civil acts is lost or is restricted;
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c. The principal has rescinded the authority
of the [particular] person carrying out the authorization.
This clause shall not apply in a case where
the Company receives a notice of one of the above cases within forty eight (48)
hours prior to the time of opening of the General Meeting of Shareholders or
prior to the time the meeting is reconvened.
Article 16. Change of
rights:
1. A resolution of the General Meeting of
Shareholders (in the cases stipulated in article 14.2 relating to the
shareholding capital of the Company being divided into different classes of
shares) on change or waiver of special rights attached to a class of shares
shall be passed only when the written consent of the holders of at least
seventy five (75) per cent of the voting rights of the issued shares of such
class is obtained.
2. The organization of such a meeting shall
be valid if at least two (2) shareholders (or their authorized representatives)
are present and each of them holds at least one-third of the par value of the
issued shares of such class. Where the number of attendees as required above is
insufficient, the meeting shall be reconvened within a period of thirty (30)
days and the holders of shares of such class (not depending on the number of
holders and the number of shares) who are present directly or via an authorized
representative shall be considered to be a sufficient number of attendees. At
each separate meeting mentioned above, the holders of the shares of such class
who are present directly or via an authorized representative may request a
secret ballot and each holder or representative attending the secret ballot
shall have one vote corresponding to each owned share of such class.
3. The procedures for conducting such
separate meetings shall be implemented in accordance with articles 18 and 20.
4. Except where otherwise stipulated by the
terms of an issue of shares, special rights attached to various classes of
shares with preference rights regarding some or all issues on distribution of
profits or assets of the Company shall not be changed when the Company issues
additional shares of the same class.
Article 17. Convening
the General Meeting of Shareholders, agenda and notice of General Meeting of
Shareholders:
1. The Board of Management shall convene the
General Meeting of Shareholders, or the General Meeting of Shareholders shall
be convened in the cases stipulated in article 13.4(b) or article 13.4(c).
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a. Prepare a list of shareholders qualified
to attend and vote at the General Meeting of Shareholders within thirty (30)
days before the date the General Meeting of Shareholders is conducted; and
prepare the agenda and documents of the meeting in compliance with law and the
rules of the Company;
b. Determine the time and venue for holding
the General Meeting of Shareholders;
c. Inform and send a notice of the meeting of
the General Meeting of Shareholders to all shareholders entitled to attend the
meeting.
3. The notice of the meeting of the General
Meeting of Shareholders must comprise the agenda of the meeting and information
relating to the issues to be discussed and voted on at the General Meeting of Shareholders.
With respect to shareholders who have implemented depository of shares, the
notice of the meeting of the General Meeting of Shareholders may be sent to the
depository organization and at the same time shall be announced on the
information network of the Stock Exchange/Securities Trading Centre, on the
website of the Company, [and] in a central newspaper or in a local newspaper
where the Company’s office is based. With respect to shareholders who have not
implemented depository of shares, the notice of the meeting of the General
Meeting of Shareholders may be sent to such shareholders by direct delivery or
by registered courier to the registered address of the shareholders or to the
address provided by such shareholders in order to receive information. Where
the shareholders have notified the Company in writing of their fax number or
e-mail address, the notice of the meeting may be sent to such fax number or
e-mail address. Where the shareholders are employees of the Company, the notice
of the meeting may be placed in a sealed envelope and sent directly to them at
their work place. The notice of the General Meeting of Shareholders must be
sent at least fifteen (15) days before the date of the meeting (such period to
be calculated from the date the notice is validly sent or delivered, the date
the fees for delivery of the notice are paid, or the date the notice is put in
a post-box). Where the Company has a website, the notice of the meeting of the
General Meeting of Shareholders must be posted on the website as well as being
sent to the shareholders.
4. A shareholder or group of shareholders
referred to in article 11.3 of this Charter shall have the right to propose
issues to be included in the agenda of a meeting of the General Meeting of
Shareholders. The proposal must be made in writing and must be sent to the
Company at least three (3) business days before the time of opening of the
General Meeting of Shareholders. The proposal must contain the full names of
the shareholders, the number and class of shares held by them, and the items
proposed to be included on the agenda.
5. The convenor of the General Meeting of
Shareholders shall have the right to reject a proposal mentioned in clause 4 of
this article in the following cases:
a. The proposal was not sent on time, is
insufficient, or is in relation to an irrelevant matter;
b. At the time of the proposal, the
shareholder or group of shareholders had not owned at least five (5) per cent
of the ordinary shares for a consecutive period of six months (or another
smaller percentage in accordance with this Charter);
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d. (Other cases).
6. The Board of Management must prepare draft
resolutions on each of the items on the agenda.
7. In a case where all shareholders
representing one hundred (100) per cent of the voting shares attend the General
Meeting of Shareholders directly or via an authorized representative, the
resolutions which are unanimously approved by the General Meeting of
Shareholders shall be deemed to be effective even if the General Meeting of
Shareholders is not conducted in accordance with the procedures, or the items
voted on were not included on the agenda.
Article 18. Conditions
for conducting the General Meeting of Shareholders:
1. The General Meeting of Shareholders shall
be conducted when the number of attending shareholders represents at least
sixty five (65) per cent of the voting shares.
2. When the number of attendees required is
insufficient within thirty (30) minutes from the time set to open the meeting,
the meeting shall be reconvened within a period of thirty (30) days from the
scheduled date for holding the first General Meeting of Shareholders. The
General Meeting of Shareholders which is convened for a second time shall be
conducted when the number of attending shareholders and authorized
representatives represent at least fifty one (51) per cent of the voting
shares.
3. When the second General Meeting of Shareholders
cannot take place because the number of attendees required is not present
within thirty (30) minutes from the time set to open the meeting, the General
Meeting of Shareholders may be convened for a third time within twenty (20)
days from the scheduled date for holding the second General Meeting of
Shareholders. In such a case, the General Meeting of Shareholders shall be
conducted irrespective of the number of attending shareholders or authorized
representatives, and shall be deemed valid and shall have the right to make
decisions on issues which may have been approved at the first General Meeting
of Shareholders.
4. Based on requests, the chairman of the
General Meeting of Shareholders may make changes to the agenda accompanying the
invitation to the meeting in accordance with article 17.3 of this Charter.
Article 19.
Procedures for conducting and voting at the General Meeting of Shareholders:
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2. Where a shareholder is registered, the
Company shall grant such shareholder with voting rights or his/her authorized
representative a voting card which states the number of registration, full name
of the shareholder, full name of the authorized representative and the number
of votes of such shareholder. When voting is conducted at the General Meeting
of Shareholders, the votes which agree with the resolution shall be collected
first, thereafter the votes which do not agree with the resolution shall be
collected, and finally the overall number of votes which agree and do not agree
with the resolution shall be counted for a final decision. The overall number
of votes which agree, which do not agree, and abstentions shall be announced
immediately after an issue is voted on. The General Meeting shall elect people
from the attendees to be responsible to count the votes or to supervise the
counting of votes, and if the General Meeting of Shareholders does not elect
such people then the chairman shall elect them. The number of members of a vote
counting committee shall not exceed three people.
3. Any shareholder who comes to the General
Meeting of Shareholders late shall be registered and shall have the right to
immediately participate in voting at the General Meeting of Shareholders. The
chairman shall not delay the General Meeting of Shareholders so that late
shareholders may register, and the effectiveness of any voting which has
already been conducted before the late shareholders attended shall not be
affected.
4. The chairman of the Board of Management
shall preside over the General Meeting of Shareholders.
In a case where the chairman of the Board of
Management is absent, the deputy chairman of the Board of Management or the
person elected by the General Meeting of Shareholders shall preside over the
General Meeting of Shareholders. Where none of such persons is able to preside
over the General Meeting of Shareholders, the member of the Board of Management
holding the highest position and who is present at the General Meeting of
Shareholders shall organize a meeting to elect the chairman of the General Meeting
of Shareholders who need not necessarily be a member of the Board of
Management. The chairman, deputy chairman of the Board of Management or the
chairman of the General Meeting of Shareholders shall elect or nominate someone
to act as secretary to prepare minutes of the General Meeting of Shareholders.
In the case of election of a chairman, the names of the nominees and the number
of votes for each nominee shall be announced.
5. Any decisions of the chairman on the order
and procedures or on events arising outside the agenda of the General Meeting
of Shareholders shall be final.
6. Even if sufficient attendees as required
are present, the chairman of the General Meeting of Shareholders shall adjourn
the General Meeting of Shareholders to another time or change the location of
the meeting decided by the chairman without obtaining opinions of the General
Meeting of Shareholders if the chairman considers that (a) the location of the
General Meeting of Shareholders fails to provide suitable seating for all attendees,
(b) there is an attendee who disrupts or is likely to disrupt order at the
meeting, or (c) an adjournment is necessary so that the work of the General
Meeting of Shareholders will be carried out validly. In addition, the chairman
of the General Meeting of Shareholders may adjourn a meeting upon agreement or
request of the General Meeting of Shareholders even if sufficient attendees as
required for such meeting are present. The maximum time for any adjournment of
a meeting shall be three days as from the date of the proposed opening of the
meeting. The General Meeting of Shareholders which is reconvened shall review
the work which should have been legally carried out at the previous adjourned
meeting.
7. Where the chairman adjourns or postpones a
General Meeting of Shareholders contrary to the provisions in clause 6 of this
article, the General Meeting of Shareholders shall elect another person from
the attendees to replace the chairman in conducting the meeting until its
completion, and the effectiveness of voting conducted at such meeting shall not
be affected.
8. The chairman or secretary of the General
Meeting of Shareholders may conduct activities which he/she finds necessary in
order to direct the General Meeting of Shareholders in a valid and orderly
manner and so that it reflects the wishes of the majority of attendees.
9. The Board of Management may require
shareholders or authorized representatives entitled to attend the General
Meeting of Shareholders to be checked or subject to other security measures
which the Board of Management considers appropriate. Where a shareholder or an
authorized representative does not comply with the rule on checking or the
security measures mentioned above, the Board of Management, after careful
consideration, may reject or expel such shareholder or authorized
representative from the General Meeting of Shareholders.
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a. Adjust the number of people who are
present at the official location of the General Meeting of Shareholders;
b. Ensure safety for the attendees who are
present;
c. Create favourable conditions for
shareholders to attend (or continue to attend) the General Meeting of
Shareholders.
The Board of Management shall have full power
to change the above measures and take all of such measures when it considers it
necessary. The measures taken may include the issue of entry permits or the use
of other forms of selection.
11. In a case where the Board of Management
takes the above measures, the Board of Management may, when it makes a
determination on the location of the meeting:
a. Announce that the General Meeting of
Shareholders shall be conducted at the location as stated in the notice of the meeting
where the chairman of the meeting shall be present (“The official Location of
the Meeting”);
b. Make arrangements so that shareholders or
authorized representatives who fail to attend the meeting in accordance with
this article or people who wish to attend the meeting but at a location
different from the Official Location of the Meeting may still attend the
General Meeting of Shareholders.
A notice on holding the General Meeting of
Shareholders shall not be required to state the detailed measures taken in
accordance with this article.
12. In this Charter (unless the context
requires otherwise), each shareholder shall be deemed to have attended the
meeting at the Official Location of the Meeting.
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Article 20. Passing
of resolutions of the General Meeting of Shareholders:
1. Except for the case stipulated in clause 2
of this article, resolutions of the General Meeting of Shareholders on the
following items shall be passed when there are votes obtained from sixty five
(65) per cent or more of the total votes of all shareholders with voting rights
who are present directly or via their authorized representatives at the General
Meeting of Shareholders:
a. Approval of annual financial statements;
b. Short-term and long-term developmental
plans of the Company;
c. Appointment, dismissal and replacement of
members of the Board of Management and the Inspection Committee and approval of
the appointment of the managing director or chief executive officer by the
Board of Management.
2. Resolutions of the General Meeting of
Shareholders relating to the amendment of and addition to the Charter, classes
of shares and number of shares offered for sale, merger, re-organization and
dissolution of the Company, sale of assets of the Company or its branches or
purchase [of assets] by the Company or its branches valued at fifty (50) per
cent or more of the total value of assets of the Company and its branches
determined on the basis of the most recent audited accounting books shall be
approved when there are votes obtained from seventy five (75) per cent or more
of the total votes of all shareholders with voting rights who are present
directly or via their authorized representatives at the General Meeting of
Shareholders.
Article 21. Authority
and procedures for collecting written opinions in order to pass resolutions of
the General Meeting of Shareholders:
The authority and procedures for collecting
written opinions in order to pass a resolution of the General Meeting of
Shareholders shall be implemented in accordance with the following provisions:
1. The Board of Management shall have the
right to collect written opinions in order to pass a resolution of the General
Meeting of Shareholders at any time, if considered necessary in the interests
of the Company.
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3. The written opinion form must contain the
following basic particulars:
a. Name, head office address, number and date
of issuance of the business registration certificate, and place of business
registration of the Company;
b. Purpose of collecting written opinions;
c. Full name, permanent address, nationality,
and the number of the people’s identity card or passport or other lawful
personal identification in respect of a shareholder being an individual; name,
permanent address, nationality, number of establishment decision or number of
business registration of a shareholder or authorized representative in respect
of a shareholder being an organization; number of shares of each class and
number of votes of the shareholder;
d. Issue on which it is necessary to obtain
opinions in order to pass a resolution;
e. Voting options comprising agreement, non
agreement, or no opinion [abstention];
f. Time-limit within which the completed
written opinion form must be returned to the Company;
g. Full name and signature of the chairman of
the Board of Management and of the legal representative of the Company.
4. Any completed written opinion form must
bear the signature of a shareholder being an individual, and of the authorized
representative or of the legal representative of a shareholder being an
organization.
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5. The Board of Management shall conduct
counting of the votes and shall prepare minutes of the counting of the votes in
the presence of the Inspection Committee or of a shareholder who does not hold
a managerial position in the Company. The minutes of counting of votes shall
contain the following basic particulars:
a. Name, head office address, number and date
of issuance of the business registration certificate; and place of business
registration of the Company;
b. Purpose of collection of written opinions
and issues on which it is necessary to obtain written opinions in order to pass
a resolution;
c. Number of shareholders with total numbers
of votes who have participated in the voting, classifying the votes into valid
and invalid, and including an appendix being a list of the shareholders who
participated in the voting;
d. Total number of votes for, against and
abstentions on each matter voted upon;
e. Resolutions which have been passed;
f. Full name and signature of the chairman of
the Board of Management, of the legal representative of the Company and of the
person who supervised the counting of votes.
The members of the Board of Management and
the person who supervised the counting of votes shall be jointly liable for the
truthfulness and accuracy of the minutes of counting of votes, and shall be
jointly liable for any loss arising from a resolution which is passed due to an
untruthful or inaccurate counting of votes.
6. The minutes of results of counting of
votes must be sent to the shareholders within a time-limit of fifteen (15) days
as from the date the counting of votes ended.
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8. A resolution which is passed by the form
of collecting written opinions of shareholders shall have the same validity as
a resolution passed by the General Meeting of Shareholders.
Article 22. Minutes
of General Meeting of Shareholders:
The chairman of the General Meeting of Shareholders
shall be responsible to archive minutes of the General Meeting of Shareholders
and send them to all shareholders within a period of fifteen (15) days from the
date the General Meeting of Shareholders ended. The minutes of the General
Meeting of Shareholders shall be considered proof that work [mentioned in the
minutes] was actually carried out at the General Meeting of Shareholders unless
an opinion against the contents of the minutes is made in accordance with the
stipulated procedures within a time-limit of ten (10) days from the date the
minutes were sent. The minutes must be prepared in Vietnamese and must bear the
signatures of the chairman of the General Meeting of Shareholders and the
secretary in accordance with the Law on Enterprises and this Charter. All
records, minutes, books of signatures of attending shareholders and written
authorizations to attend the General Meeting of Shareholders must be archived
at the head office of the Company.
Article 23. Demand
for cancellation of resolutions of the General Meeting of Shareholders:
Shareholders, members of the Board of Management,
the director or general director or the Inspection Committee shall have the
right to require a court or an arbitrator to consider and cancel a resolution
of the General Meeting of Shareholders within ninety (90) days from the date of
receipt of minutes of the General Meeting of Shareholders or minutes of the results
of counting of votes being written opinions from the General Meeting of
Shareholders, in the following cases:
1. The order and procedures for convening the
General Meeting of Shareholders did not comply with the law and this Charter;
2. The order and procedures for issuing a
resolution and the content of the resolution breach the law or this Charter.
VII. BOARD OF
MANAGEMENT
Article 24.
Composition and term of office of members of the Board of Management:
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2. … members of the Board of Management shall
be nominated by founding shareholders in proportion to the ratio of shares they
own. The founding shareholders shall be entitled to aggregate the ratio of
shares they own in order to nominate candidates to the Board of Management.
3. Shareholders who hold at least five (5)
per cent of shares with voting rights for a consecutive period of at least six
(6) months (or a percentage which is less than ten (10) per cent as stipulated
in this Charter) shall have the right to aggregate the number of voting rights
of each such shareholder to nominate candidates to the Board of Management. A
shareholder or a group of shareholders which holds ten (10) per cent or less of
shares with voting rights for a consecutive period of at least six (6) months
shall be entitled to nominate one candidate; which holds from ten (10) per cent
to less than thirty (30) per cent shall be entitled to nominate two candidates;
which holds from thirty (30) per cent to less than fifty (50) per cent shall be
entitled to nominate three candidates; which holds from fifty (50) per cent to
less than sixty five (65) per cent shall be entitled to nominate four
candidates, and which holds sixty five (65) per cent or more shall be entitled
to nominate the full number of candidates.
4. Where the number of candidates is still
insufficient after candidates have been nominated by the Board of Management,
the incumbent Board of Management may nominate additional candidates or hold a
nomination in accordance with rules stipulated by the Company. The rules for
nomination or the manner used by the incumbent Board of Management to nominate
candidates to the Board of Management must be clearly announced and must
receive approval from the General Meeting of Shareholders before the nomination
is held.
5. The membership of a member of the Board of
Management shall be terminated in the following cases:
a. Such member is ineligible to be a member
of the Board of Management in accordance with the Law on Enterprises or is
prohibited from being a member of a Board of Management by law;
b. Such member sends a written application
for resignation to the head office of the Company;
c. Such member suffers a mental disorder and
the other members of the Board of Management have expert proof of such loss of
capacity for civil acts;
d. Such member is absent from meetings of the
Board of Management for a consecutive period of six (6) months, and the Board
did not permit the member to be absent within such period and makes a decision
that the position of such member is vacated;
e. Such member is dismissed from the Board of
Management by a decision of the General Meeting of Shareholders.
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7. The appointment of members of the Board of
Management must be announced in accordance with the laws on securities and
securities market.
8. Members of the Board of Management need
not necessarily be shareholders of the Company.
Article 25. Powers
and duties of the Board of Management:
1. Business activities and work of the
Company shall be subject to management or direction for implementation by the
Board of Management. The Board of Management is the body with full power to
exercise all rights on behalf of the Company, excluding authority which belongs
to the General Meeting of Shareholders.
2. The Board of Management shall be
responsible to supervise the managing director or chief executive officer and
other managers.
3. The rights and obligations of the Board of
Management shall be as stipulated by law, this Charter, the internal rules of
the Company, and resolutions of the General Meeting of Shareholders.
Specifically, the Board of Management shall have the following powers and
duties:
a. To make decisions on plans for development
of annual business and production, and the annual budget;
b. To determine the operational objectives on
the basis of the strategic objectives approved by the General Meeting of
Shareholders;
c. To appoint and discharge managers of the
Company upon the request of the managing director or chief executive officer;
and to make decisions on their salary;
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e. To deal with complaints made by the
Company about a manager and to make a decision selecting a representative of
the Company to deal with legal procedural issues against such manager;
f. To propose the classes of shares which may
be issued and the total number of shares of each class to be issued;
g. To propose the issuance of bonds, bonds
convertible into shares and securities rights which entitle the owner to
purchase shares at a pre-determined price;
h. To determine the prices at which bonds,
shares and convertible securities will be offered for sale;
i. To appoint, dismiss or remove the managing
director, chief executive officer, a manager or the representative of the
Company where the Board of Management believes that such action is taken in the
best interests of the Company. Such removal shall not be contrary to the
contractual rights (if any) of the person involved;
j. To propose annual dividend rates and to
fix temporary dividend rates; to organize payment of dividends;
k. To propose the restructuring or
dissolution of the Company.
4. The following issues must be approved by
the Board of Management:
a. Establishment of a branch or
representative office of the Company;
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c. The Board of Management may from time to
time make decisions on the performance, amendment or rescission of large
contracts of the Company (including contracts for purchase, sale, merger and
takeover of companies and joint venture contracts) within the scope of article
108.2 of the Law on Enterprises, except for the case stipulated in article
120.3 of the Law on Enterprises which must be approved by the General Meeting
of Shareholders;
d. Appointment and removal of any person
authorized by the Company to act as a commercial representative or lawyer of
the Company;
e. Borrowing, and implementation of
mortgages, warranties, guarantees and payment of compensation by the Company;
f. Investments which are not included in the
business plan and budget which exceed …. Vietnamese dong, or investments
exceeding ten (10) per cent of the value in the [annual] plan and in annual
business budget;
g. Purchase or sale of shares of other
companies established in Vietnam or overseas;
h. Valuation of assets contributed to the
Company which are not in cash relating to the issuance of shares or bonds by
the Company, including gold, land use rights, intellectual property rights,
technology and technological know-how;
i. Purchase or recovery by the Company of no
more than ten (10) per cent of shares of each class;
j. Business issues or transactions which the
Board of Management decides are required to have its approval [and which are]
within the scope of its powers and responsibilities;
k. Decision on the buying or recovery price
of shares of the Company.
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6. Except where the law and this Charter
stipulate otherwise, the Board of Management may authorize lower level staff or
a manager to deal with work on behalf of the Company.
7. Members of the Board of Management
(excluding authorized alternate representatives) shall be entitled to
remuneration for their work in their capacity as members of the Board. The
total remuneration for the Board shall be determined by the General Meeting of
Shareholders and shall be distributed to members of the Board as agreed by the
Board or shall be distributed [amongst all members] equally if the Board fails
to reach an agreement.
8. The total remuneration paid to members of
the Board of Management (and remuneration paid to each member) must be recorded
in detail in the annual report of the Company.
9. Any member of the Board of Management who
holds an executive position (also including chairman or deputy chairman) or who
works on a sub-committee of the Board of Management or who performs other work
which is, in the opinion of the Board, beyond the scope of the normal duties of
a member of a Board of Management may be paid extra remuneration in the form of
a lump sum payment each time, or salary, commission, profit percentage or other
form as decided by the Board of Management.
10. Members of the Board of Management shall
be entitled to reimbursement for the cost of meals, accommodation, travel and
other reasonable expenses disbursed in order to fulfil his/her responsibilities
as a member of the Board, including expenses arising out of attendance at
meetings of the Board or of sub-committees of the Board, or [at meetings] of
the General Meeting of Shareholders.
Article 26. Chairman
and deputy chairman of the Board of Management:
1. The General Meeting of Shareholders or the
Board of Management must elect a chairman and deputy chairman from members of
the Board. The chairman of the Board of Management shall not act concurrently
as the managing director or chief executive officer of the Company, except
where otherwise decided by the General Meeting of Shareholders . Approval shall
be required at the annual General Meeting of Shareholders for the chairman of
the Board of Management to act concurrently as the managing director or chief
executive officer.
2. The chairman of the Board of Management
shall be responsible to convene and to chair the General Meeting of
Shareholders and meetings of the Board of Management, and at the same time
shall have other rights and responsibilities stipulated in this Charter and in
the Law on Enterprises. The deputy chairman shall have the same rights and
obligations as the chairman where the deputy chairman is authorized by the
chairman, but only where the chairman has notified the Board of Management of
his/her absence or of his/her having to be absent due to a reason of force
majeure or his/her inability to carry out his/her duties. In such cases [where
the chairman is absent] as stated above, the chairman shall not appoint the
deputy chairman to act, but rather the remaining members of the Board shall
appoint the deputy chairman. Where both the chairman and deputy chairman are
temporarily unable to perform their duties for any reason, the Board of
Management may appoint, on the principle of simple majority, another person
from the Board to implement the duties of the chairman.
3. The chairman of the Board of Management
must ensure that the Board of Management sends the annual financial statements,
the report on the operation of the Company, the audit report and the inspection
report of the Board of Management to shareholders at the General Meeting of Shareholders.
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(It shall not be mandatory to have this
article 27:)
Article 27. Alternate
[replacement] members of the Board of Management:
1. A member of the Board of Management (not
being the person authorized to replace such member) may appoint another member
of the Board, or a person who is approved by the Board and who is willing to
perform such duty, as his/her alternate person, and shall have the right to
discharge such person.
2. An alternate member of the Board of
Management shall be entitled to receive notices of any meeting of the Board and
of any sub-committee of the Board of which his designator is a member; shall be
entitled to attend and vote at meetings where the member of the Board being
such designator is absent; and shall have authority to perform all functions of
the designator as a member of the Board where the designator is absent. Such
alternate member shall not be entitled to receive any remuneration for his/her
work from the Company in the capacity as an alternate member of the Board of
Management. The Company shall not be bound to send notices of the above-mentioned
meetings to alternate members of the Board who are not present in Vietnam.
3. An alternate member shall be required to
waive his/her membership of the Board of Management where membership of his/her
designator is terminated. Where the term of office of a member of the Board of
Management expires but such member is re-appointed or deemed to have been re-
appointed at the General Meeting of Shareholders where the term of office would
otherwise have expired, then any appointment of an alternate member which such
member made immediately before such expiry of his/her term of office shall
continue to be effective after such member is re-appointed.
4. Any member of the Board of Management who
appoints or removes an alternate person must do so in writing, and must prepare
and sign a written report on such appointment or removal and send it to the
Company or lodge it in some other way as approved by the Board of Management.
5. In addition to the other provisions in
this Charter, an alternate member shall be deemed to be a member of the Board
of Management in all respects and shall be personally liable for his/her acts
and errors but [in such case] shall not be deemed to be a representative
implementing the authorization of the member of the Board of Management who is
his/her designator.
Article 28. Meetings
of the Board of Management:
1. In a case where the Board of Management is
to elect the chairman, then the initial meeting of the term of the Board of
Management in order to elect the chairman and to pass other resolutions within its
authority must be conducted within a time-limit of seven (7) working days from the
date of completion of the election of the Board for that term. This meeting
shall be convened by the member who gains the highest number of votes. If more
than one member gains the same highest number of votes, such elected members shall
elect a person amongst them to convene the meeting by a majority vote.
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The chairman of the Board of Management shall
convene a regular meeting of the Board of Management, prepare the agenda of the
meeting and determine the time and location of the meeting within a period of
at least seven (7) days before the proposed date of the meeting. The chairman
may convene a regular meeting of the Board of Management at any time where considered
necessary, but there must be at least one meeting every quarter.
3. Ad hoc [extraordinary] meetings:
The chairman must convene a meeting of the Board
of Management, which shall not be delayed without a legitimate reason, where any
of the following make a written request specifying the objective and issues
which need to be discussed:
a. The managing director or chief executive
officer or at least five managers;
b. Two (2) members of the Board of
Management;
c. The chairman of the Board of Management;
d. A majority of members of the Inspection
Committee.
4. A meeting of the Board of Management as
stipulated in clause 3 of this article must be conducted within a time-limit of
fifteen (15) days after the request for the meeting is made. If the chairman of
the Board does not agree to convene a meeting pursuant to the request, then the
chairman shall be liable for loss caused to the Company; any person who makes a
request for a meeting as referred to in clause 3 of this article may
himself/herself convene a meeting of the Board of Management.
5. Where an independent auditor makes a
request, the chairman of the Board of Management must convene a meeting of the
Board in order to discuss the audit report and the status of the Company.
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Meetings of the Board of Management shall be
conducted at the registered address of the Company or at another address in
Vietnam or abroad as decided by the chairman of the Board and agreed by the
Board of Management.
7. Notice and agenda of a meeting of the
Board of Management:
The notice of a meeting of the Board of
Management must be sent to members of the Board at least five (5) days prior to
the date on which the meeting is to be held; members of the Board may refuse in
writing the notice of invitation and such refusal may take retroactive effect. The
notice of the meeting of the Board must be made in writing and in Vietnamese; it
must provide sufficient information about the agenda, the time and location of
the meeting; and it must be accompanied with necessary documents on the issues
to be discussed and voted on at the meeting of the Board and include voting
slips for members of the Board who will be unable to attend the meeting.
A notice of invitation may be sent by post,
fax, electronic mail or by other means, but must ensure arrival at the address
of each member of the Board as registered with the Company.
8. Minimum number of attending members:
A meeting of the Board of Management shall be
conducted and resolutions shall be passed if at least three-quarters of the members
of the Board are present in person or via their alternate representatives.
9. Voting:
a. Except for the regulation in clause 9(b) of
this article, each member of the Board of Management or his or her authorized
person being an individual who is present in person at a meeting of the Board
shall have one vote;
b. A member of the Board of Management shall not
be permitted to vote on a contract, transaction or proposal in which such member
or his/her related person has an interest contrary to or possibly contrary to
the interests of the Company. A member of the Board shall not be included in
the minimum number of attendees required to be present to hold a meeting of the
Board regarding resolutions on which such member does not have the right to
vote;
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d. Any member of the Board of Management who
benefits from one of the contracts stipulated in articles 34.4(a) and 34.4(b)
of this Charter shall be considered to have a significant [material] interest
in such contract.
10. Public disclosure of interest:
Any member of the Board of Management who directly
or indirectly benefits from a contract or transaction which has been signed or
is intended to be signed with the Company, and where such member is aware that
he/she has an interest, shall be required to disclose the nature and content of
such interest at the meeting where the Board of Management considers the
signing of such contract or transaction for the first time; or such member may
disclose the interest at the first meeting of the Board held after such member
becomes aware that he/she has or will have an interest in the relevant contract
or transaction.
11. Voting by a majority:
The Board of Management shall pass
resolutions and make decisions by complying with the assent of the majority of members
of the Board in attendance (more than fifty (50) per cent). Where the number of
votes which assent [agree] and the number of votes which do not assent
[disagree] are equal, then the vote of the chairman shall be the deciding vote.
12. Meetings by telephone or by other forms:
A meeting of the Board of Management may be conducted
by way of a conference call between members of the Board where all or a number
of members are at different places, provided that each attending member is able
to:
a. Hear other members of the Board expressing
their opinions in the meeting;
b. Express his/her opinions at the same time
as other attending members if he/she wishes to do so. Members may communicate directly
via the telephone or by other means of communication (including the use of means
arising after this Charter is approved) or by a combination of such means.
Members of the Board who attend a meeting in this manner shall be deemed
present at such meeting pursuant to this Charter. The location of the meeting to
be held in accordance with this provision shall be the location where the
largest number of members of the Board gathers, or if there is no such group
[of the largest number of members of the Board] then the meeting shall be held
at the location where the chairman of the meeting is present.
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13. Written resolutions:
A written resolution must bear the signatures
of all the following members of the Board of Management:
a. The members with the right to vote on such
resolution at a meeting of the Board;
b. The number of members present must not have
been less than the minimum number of members stipulated as necessary to conduct
a meeting of the Board of Management.
A resolution of this kind shall have the same
effect and validity as a resolution passed by members of the Board of
Management at a meeting which is convened and held in accordance with the
normal procedure. A written resolution may be passed by using a number of
copies of the same document so long as each copy bears the signature of at
least one member.
14. Minutes of the Board of Management:
The chairman of the Board of Management shall
be responsible to deliver minutes of a meeting of the Board to members, and
such minutes shall be deemed to be proof that the work [mentioned in the
minutes] was actually carried out at such meeting unless an opinion against the
content of the minutes is provided within a time-limit of ten (10) days from
the date of delivery of such minutes. The minutes of the Board of Management
must be prepared in Vietnamese and must bear the signatures of all the members
of the Board who attended.
15. Sub-committees of the Board of
Management:
The Board of Management may establish a
sub-committee and authorize it to act pursuant to the authority of the Board.
Membership of a sub-committee may consist of one or more members of the Board
of Management and one or more non-board members pursuant to a decision of the
Board. During the course of performance of authorized powers, the sub-committee
must comply with the rules stipulated by the Board. Such rules may regulate or
permit the admission of additional persons being non-board members to the sub-committee
and may permit such persons to vote in their capacity as members of the
sub-committee, but (a) the number of non-board members must be less than half the
total number of members of the sub-committee, and (b) resolutions of the sub-
committee shall only take effect when the majority of members attending and
voting at a meeting of the sub-committee were members of the Board.
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Actions taken to implement resolutions of the
Board of Management, of sub-committees under the Board of Management, or of a person
with membership on a sub-committee under the Board of Management shall be
deemed to be legally effective even when there may have been an error in the
election and appointment of a member to the sub-committee or to the Board of
Management.
VIII. CHIEF EXECUTIVE
OFFICER, OTHER MANAGERS AND SECRETARY OF THE COMPANY
Article 29.
Organization of management apparatus:
The Company shall create a management system
which is liable to the Board of Management and under the leadership of the
Board of Management. The Company shall have a managing director or chief
executive officer or a number of deputy managing directors or deputy chief
executive officers and a chief accountant appointed by the Board of Management.
The managing director or chief executive officer and deputy managing directors
or deputy chief executive officers may act concurrently as members of the
Board, and shall be appointed or dismissed by the Board of Management by a duly
approved resolution.
Article 30 Managers:
1. Upon the proposal of the managing director
or chief executive officer and with the approval of the Board of Management,
the Company shall be entitled to employ a number and various categories of
managers necessary for or in compliance with the management structure and
practice of the Company as proposed by the Board of Management from time to
time. Managers must be diligent as required in order for the Company to achieve
the stated objectives of its operation and organization.
2. The salary, remuneration, benefits and
other terms in a labour contract with the managing director or chief executive
officer shall be as decided by the Board of Management, and labour contracts
with other managers shall be as decided by the Board of Management after
consulting the managing director or chief executive officer.
Article 31.
Appointment, removal, duties and powers of the managing director or chief
executive officer:
1. Appointment:
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2. Term of office:
Pursuant to article 26 of this Charter, the
managing director or chief executive officer may not be the chairman of the
Board of Management. The term of office of the managing director or chief
executive officer shall be three (3) years except where otherwise stipulated by
the Board, and he/she may be re-appointed. The appointment may become null and
void pursuant to terms in the labour contract. The managing director or chief
executive officer may not be a person prohibited by law from holding such
position such as a minor, a person lacking capacity for civil acts, a person
sentenced to imprisonment or serving a prison sentence, an officer of the armed
forces, a State official or an employee whom a [court] verdict states caused a
company of which he was an official to become bankrupt.
3. Powers and duties:
The managing director or chief executive
officer shall have the following powers and responsibilities:
a. To implement resolutions of the Board of
Management and of the General Meeting of Shareholders, and the business plan
and investment plan of the Company approved by the Board of Management and the
General Meeting of Shareholders;
b. To make decisions on issues which do not
require a resolution of the Board of Management including the signing of
financial and commercial contracts on behalf of the Company, and on the
organization and management of day-to-day business and production activities of
the Company in accordance with best management practices;
c. To make recommendations on the number and
category of managers the Company needs to employ in order for the Board of
Management to appoint or dismiss them when considered necessary for the purpose
of effectively implementing activities and effectively applying the managerial
structure proposed by the Board; and to provide advice to the Board so that it
may decide the salary, remuneration, benefits and other terms for managers in
their labour contracts;
d. To consult with the Board in order to make
a decision on the number of employees, on their salary, allowances, benefits,
appointment and dismissal and other terms relating to their labour contracts;
e. On (31st of October) each year, the
managing director or chief executive officer must submit a detailed business
plan for the next financial year to the Board of Management for its approval on
the basis of satisfying the appropriate requirements of the budget and the
five-year financial plan;
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g. To propose measures to improve the
operation and management of the Company;
h. To prepare long-term, annual and monthly
estimates of the Company (hereinafter referred to as an estimate) to service
the long-term, annual and monthly management activities of the Company in
accordance with the business plan. The annual estimated budget (including the
forecast balance sheet, report on business and production activities and cash
flow report) for each financial year must be submitted to the Board of
Management for its approval and must comprise information as stipulated in
rules of the Company;
i. To carry out other activities in
accordance with this Charter, the rules of the Company, the resolutions of the
Board of Management, the labour contract of the managing director or chief
executive officer, and in accordance with law.
4. Reporting to the Board of Management and
shareholders:
The managing director or chief executive
officer shall be liable before the Board of Management and the General Meeting
of Shareholders for implementation of his/her assigned duties and powers, and
must report [on such implementation] to such authorities if so required.
5. Removal:
The Board of Management may remove the
managing director or chief executive officer when two- thirds or more of the
members of the Board vote to agree [on such removal] (not counting the vote of
such managing director or chief executive officer) and may appoint a new
managing director or chief executive officer for replacement. The removed
managing director or chief executive officer shall have the right to object to
such removal at the next General Meeting of Shareholders.
Article 32. Secretary
of the company:
The Board of Management shall appoint one (or
more) persons as secretary of the Company with a term of office and other terms
as decided by the Board of Management. The Board of Management may remove the
secretary of the Company when considered necessary but not contrary to the
applicable law on labour. The Board of Management may also appoint one or more
assistants to the secretary of the Company from time to time. The role and
duties of the secretary of the Company shall comprise:
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b. Preparing minutes of meetings;
c. Providing advice on procedures for
meetings;
d. Providing financial information, copies of
minutes of meetings of the Board of Management and other information to members
of the Board and the Inspection Committee.
The secretary of the Company shall be
responsible to keep information confidential in accordance with law and this
Charter.
IX. DUTIES OF MEMBERS
OF THE BOARD OF MANAGEMENT, CHIEF EXECUTIVE OFFICER (MANAGING DIRECTOR) AND
MANAGERS
Article 33.
Responsibility of members of the Board of Management, the managing director or
chief executive officer and managers, to be prudent:
Any member of the Board of Management, the
managing director or chief executive officer and any authorized manager shall
be responsible to perform his/her duties including duties in the capacity of a
member of a sub-committee of the Board in a truthful manner, in the manner
which is believed to be in the best interests of the Company, and with the
degree of prudence which a prudent person must have in order to fill a
corresponding position in similar circumstances.
Article 34.
Responsibility to be honest and to avoid conflicts of interests:
1. Members of the Board of Management, the
managing director or chief executive officer and managers shall not be
permitted to use business opportunities profitable to the Company for personal
purposes; and shall not be permitted to use information obtained by virtue of
their position for their personal benefit or for the benefit of others.
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3. The Company shall not be permitted to
provide loans, guarantees or credit to members of the Board of Management, the
managing director or chief executive officer, to managers and their families,
or to legal entities in which the above-mentioned persons have a financial
interest, unless otherwise decided by the General Meeting of Shareholders.
4. A contract or transaction between the
Company and one or more members of the Board of Management, the managing
director or chief executive officer, a manager or his/her related person or a
company, partner, association or organization of which one or more members of
the Board of Management or a manager or his/her related person is a member or
has related financial interests shall not be void due to such relationship or
due to the fact that such member of the Board of Management or such manager was
present or attended a relevant meeting or participated on the Board or a
sub-committee which permitted execution of such contract or transaction, or
permitted the inclusion of his/her votes for such purpose [agreeing to
implementation of the contract or transaction], if:
a. With respect to a contract valued at
twenty (20) per cent or less of the total value of assets recorded in the most
recent financial statements, the important factors regarding the contract or
transaction and the relationship and interests of the manager or member of the
Board were reported to the Board or to the relevant sub-committee; and at the
same time, the Board or such sub-committee honestly permitted the contract or
transaction to be executed on the basis of the majority of votes of members of
the Board without any related interest; or
b. With respect to a contract valued at
twenty (20) per cent or more of the total value of assets recorded in the most
recent financial statements, the important factors regarding the contract or
transaction and the relationship and interests of the manager or member of the
Board were reported to the shareholders without any related interests and with
the right to vote on such issue, and such shareholders voted in favour of such
contract or transaction;
c. An independent consultancy organization finds
such contract or transaction fair and reasonable in all respects involving the
shareholders of the Company at the time when such contract or transaction is
permitted to be executed, or is passed or approved by the Board, a
sub-committee under the Board, or the shareholders.
Any member of the Board of Management, the
managing director or chief executive officer, and any manager or his/her
related person shall not be permitted to purchase, sell or transact shares of
the Company or its subsidiary in any form at the time of receipt of information
stating it is certain that the price of such shares will be affected, and when
other shareholders are unaware of such information.
Article 35. Liability
for loss, and compensation:
1. Liability for loss:
Any member of the Board of Management, the
managing director or chief executive officer or any manager who breaches the
obligation to act honestly [or] who fails to fulfil his/her obligations
carefully, diligently and professionally shall be liable for any loss caused by
such breach.
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The Company shall pay compensation to a
person who has been, is or is likely to become a party involved in a claim,
suit or legal proceeding which has been, is or is likely to be conducted,
whether or not it is a civil or administrative case, (but excluding a lawsuit
conducted by the Company or initiated by the Company within its powers) where
such person was or is a member of the Board of Management, a manager, an
employee or a representative authorized by the Company (or its subsidiary), or
such person was or is doing things at the request of the Company (or its
subsidiary) in the capacity as a member of the Board of Management, a manager,
an employee or as an authorized representative of another company, partner, joint
venture, trust or legal entity. Costs to be paid as compensation shall comprise
all costs arising (including costs to hire a lawyer), costs of the judgement,
penalties, amounts payable and actually arising or amounts deemed reasonable
during the resolution of the case within the framework permitted by law,
provided that such person has acted honestly, carefully, diligently and
professionally in a manner which such person believed was in the interests or
not contrary to the best interests of the Company, and on the basis of
compliance with law and on condition that there is no discovery or confirmation
that such person breached his/her obligations. The Company shall be entitled to
purchase insurance for the above-mentioned persons in order to avoid having to
pay such compensation itself.
X. INSPECTION
COMMITTEE
Article 36. Members
of the Inspection Committee:
1. The Inspection Committee shall be required
to have from three (3) to five (5) members. At least one member of the
Inspection Committee must be an accounting-financial expert. Such member must
not be staff in the accounting-financial department of the Company and must not
be a member or staff of the independent auditing firm which is auditing the
financial statements of the Company. The Inspection Committee must appoint a
member being a shareholder of the Company as the head of the Inspection
Committee. The head of the Inspection Committee shall have the following rights
and responsibilities:
a. To convene meetings of the Inspection
Committee and to act as the head of the Inspection Committee;
b. To request the Company to provide relevant
information in order to report to members of the Inspection Committee;
c. To prepare and sign reports of the
Inspection Committee after consulting the Board of Management, and to submit
same to the General Meeting of Shareholders.
2. A shareholder who holds less than ten (10)
per cent of shares with voting rights for a consecutive period of at least six
(6) months [or a smaller percentage as stipulated in this Charter] may collect
votes in order to nominate candidates to the Inspection Committee. A
shareholder or a group of shareholders which holds less than ten (10) per cent
of voting shares for a consecutive period of at least six (6) months shall be
entitled to nominate one (1) candidate; which holds from ten (10) per cent to
less than thirty (30) per cent shall be entitled to nominate two (2)
candidates; which holds from thirty (30) per cent to less than fifty (50) per
cent shall be entitled to nominate three (3) candidates; which holds from fifty
(50) per cent to less than sixty five (65) per cent shall be entitled to
nominate four candidates and which holds from sixty five (65) per cent or more
shall be entitled to nominate the full number of candidates.
3. Members of the Inspection of Committee
shall be appointed by the General Meeting of Shareholders; the term of office
of the Inspection Committee shall be not more than five (5) years; and members
of the Inspection Committee may be re-appointed with an unlimited number of
terms.
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a. Such member is prohibited from being a
member of the Inspection Committee by law;
b. Such member resigns by sending a written
notice to the head office of the Company;
c. Such member suffers a mental disorder and
other members of the Inspection Committee have expert evidence that such member
has lost his/her capacity for civil acts;
d. Such member is absent from the meetings of
the Inspection Committee for a consecutive period of six (6) months, and the
Inspection Committee did not allow such member to be absent within such period
and has decided that the position of such member is vacated;
e. Such member is dismissed from the
Inspection Committee by a decision of the General Meeting of Shareholders.
Article 37. The
Inspection Committee:
1. The Company shall be required to have an
Inspection Committee which shall have the powers and responsibilities
stipulated in article 123 of the Law on Enterprises and in this Charter, which
shall be principally the following powers and responsibilities:
a. To propose the selection of an independent
auditing firm, fees for auditing and all issues relating to withdrawal by or
removal of the independent auditing firm;
b. To discuss the nature and scope of
auditing with an independent auditor before auditing work commences;
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d. To inspect the annual, six-monthly and
quarterly financial statements before submitting them to the Board of
Management;
e. To discuss difficulties and outstanding
issues discovered in the mid-term or final-term audit results as well as issues
which the independent auditor wishes to discuss;
f. To review the management letter of the
independent auditor and feedback from the Company's managing board/s;
g. To review reports of the Company on the
internal control system before they are approved by the Board of Management;
and
h. To review the results of internal
inspections and feedback from the Company's managing board/s.
2. Members of the Board of Management, the
managing director or chief executive officer and managers shall be required to
provide all information and documents relating to the operation of the Company
at the request of the Inspection Committee. The secretary of the company must
ensure that all copies of financial and other information provided to members
of the Board of Management and copies of minutes of meetings of the Board are
also provided to members of the Inspection Committee at the same time as they
are provided to the Board of Management.
3. The Inspection Committee may issue rules
on meetings of the Inspection Committee and the manner in which the Inspection
Committee operates, after consulting the Board of Management. The Inspection
Committee must meet at least twice each year and the minimum number of members
attending a meeting must be two (2).
4. Total remuneration for the members of the
Inspection Committee shall not exceed ….VND per year. Such remuneration may be
higher in accordance with a decision of the General Meeting of Shareholders.
The members of the Inspection Committee shall be entitled to reimbursement of
reasonable travel, hotel and other costs arising from or in connection with
business activities of the Company.
XI. RIGHT TO
INVESTIGATE BOOKS AND RECORDS OF THE COMPANY
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1. A shareholder or group of shareholders as
referred to in articles 24.3 and 36.2 of this Charter shall have the right to
send directly, or send via their lawyer or authorized person, a written request
to be allowed to inspect the list of shareholders and minutes of meetings of
the General Meeting of Shareholders and to copy or extract such records during
business hours at the main business location of the Company. Such request for
inspection by a lawyer representing a shareholder or by another authorized
representative of the shareholder must be accompanied by a power of attorney or
a notarized copy of the relevant power of attorney.
2. Members of the Board of Management,
members of the Inspection Committee, the managing director or chief executive
officer and managers shall be entitled to inspect the register of shareholders
of the Company, the list of shareholders and other books and records of the
Company concerning their positions in the Company, provided that such information
is kept confidential.
3. The Company shall be required to archive
this Charter, amendments of and additions to this Charter, the business
registration certificate, any rules, documents proving ownership of assets,
minutes of meetings of the General Meeting of Shareholders and of the Board of
Management, reports of the Inspection Committee, annual financial statements,
accounting books and any other documents in accordance with law at the head
office or other location, provided that the shareholders and the business
registration body have been notified of [such other] location where such
documents are kept.
4. Shareholders shall be entitled to be given
a free copy of this Charter by the Company. If the Company has a website, the
Charter must be announced on such website.
XII. STAFF AND THE
TRADE UNION
Article 39. Staff and
the Trade Union:
The managing director or chief executive
officer must prepare a plan in order for the Board of Management to approve
issues relating to recruitment, labour, compulsory termination of employment,
salary, social insurance, welfare, rewards and discipline applicable to
managers and employees as well as regarding the relationship between the
Company with accredited trade unions in accordance with best management standards,
practices and policies, the practices and policies stipulated in this Charter,
the rules of the Company, and applicable laws.
XIII. DISTRIBUTION OF
PROFIT
Article 40.
Dividends:
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2. The Board of Management may decide, in
accordance with the Law on Enterprises, a mid-term payment of dividends when
such payment is considered to conform with the profitability of the Company.
3. The Company shall not pay interest on
dividends or on [other] sums paid on any class of shares.
4. The Board of Management may request the
General Meeting of Shareholders to approve payment of all or part of dividends
by specific assets (such as fully paid shares or bonds issued by other
companies), and the Board of Management shall be the body implementing such
resolution.
5. When payment of dividends or [other] sums
paid on any class of shares is made in cash, the Company must make payment in
Vietnamese dong and may make payment by cheque or money order posted to the
registered address of any beneficiary shareholder; if any risk arises (out of
the registered address of a shareholder) then such shareholder shall be
responsible for such risk. In addition, the amount used to pay dividends or
[other] sums paid on any class of shares may be paid by bank transfer if the
Company has bank details so as to directly transfer payment to such
shareholder’s bank account. If the Company makes a bank transfer based on the
exact banking details provided by a shareholder but such shareholder does not
receive the money, the Company shall not be liable for the amount which it so
transferred to the shareholder. Payment of dividends on shares listed on the
Stock Exchange/Securities Trading Centre may be made via a securities company
or Depository Centre.
6. The Board of Management may decide and
announce that owners of ordinary shares shall be entitled to receive dividends
by ordinary shares instead of cash dividends, if the General Meeting of
Shareholders so approves. Additional shares used to pay such dividends shall be
recorded as shares the purchase price of which has been fully paid, on the
basis that the value of shares received in lieu of dividends corresponds to the
cash amount for payment of dividends.
7. The Board of Management may approve a
resolution which stipulates a specific date as the closing date of the business
operational register of the Company, based on the Law on Enterprises. On such
date, any person who has registered as a shareholder or owner of other
securities shall be entitled to receipt of dividends, interest, distribution of
profit, and receipt of share certificates, notices or other documents. Such
closing date may coincide with or may be earlier than the date on which such
interests may be [are entitled to be] exercised. This article shall not affect
the interests of the two parties to any transfer of the relevant shares or
securities.
Article 41. Other
issues relating to distribution of profit:
[Other issues relating to distribution of
profit shall be implemented in accordance with law.]
XIV. BANK ACCOUNTS,
RESERVE FUND, FINANCIAL YEAR AND ACCOUNTING SYSTEM
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1. The Company shall open a bank account at a
Vietnamese bank or foreign bank authorized to operate in Vietnam.
2. The Company may, where necessary and with
prior approval of the competent body, open a bank account in a foreign country
in accordance with law.
3. The Company shall conduct payment and
accounting transactions via its Vietnamese dong account or foreign currency
account at the bank where it opens such account.
Article 43. Reserve
fund:
Each year the Company shall take an amount
from its after-tax profit and transfer it into a reserve fund to supplement
charter capital in accordance with law. Such amount shall not exceed five (5)
per cent of the after-tax profit of the Company and shall be taken until the
reserve fund is equivalent to ten (10) per cent of the charter capital of the
Company.
Article 44 Financial
year:
The financial year of the Company shall
commence from the first day of January each year and shall end on the 31st
December in the same year. The first financial year shall begin from the date
of issuance of the business registration certificate (or business licence in
respect of conditional industries and business sectors) and shall end on the
31st December after the date of issuance of such business registration
certificate (or business licence).
Article 45.
Accounting system:
1. The accounting system used by the Company
shall be Vietnamese Accounting System (VAS) or another accounting system
approved by the Ministry of Finance.
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3. The Company shall use Vietnamese dong as
the currency in accounting.
XV. ANNUAL
STATEMENTS, RESPONSIBILITIES FOR DISCLOSURE OF INFORMATION AND PUBLIC ANNOUNCEMENT
Article 46. Annual,
six-monthly and quarterly statements:
1. The Company shall prepare annual financial
statements in accordance with law and the regulations of the State Securities
Commission, and such statements must be audited in accordance with article 48
of this Charter. Within a time-limit of ninety (90) days from the end of each
financial year, the annual financial statements which has been approved by the
General Meeting of Shareholders must be submitted to the authorized tax
authority, the State Securities Commission, the Stock Exchange/Securities
Trading Centre and the business registration body.
2. Annual financial statements must contain a
report on the results of business and production activities which reflects in a
truthful and objective manner the profit and loss of the Company in the
financial year, a balance sheet which reflects truthfully and objectively the
activities of the Company as at the time of preparation of the statement, a
cash flow report and explanatory notes to the financial statements. If the
Company is a parent company, a consolidated balance sheet on the operation of
the Company and its subsidiaries as at the end of each financial year must also
be included in addition to the annual financial statements.
3. The Company must formulate six-monthly and
quarterly statements in accordance with regulations of the State Securities
Commission and submit them to the State Securities Commission and the Stock
Exchange/Securities Trading Centre.
4. A summary of the contents of the audited
annual financial statements must be sent to all shareholders and announced in
three consecutive issues of a local daily newspaper and a central economic
newspaper. If the Company has its own website, the audited financial statements
and the six-monthly and quarterly statements of the Company must be announced
on such website.
5. Interested organizations and individuals
shall be entitled to inspect or copy the audited annual financial statements
and the six-monthly and quarterly statements during business hours of the
Company at its head office, and shall be required to pay reasonable copying
expense.
Article 47.
Disclosure of information and public announcement:
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XVI. AUDITING THE
COMPANY
Article 48. Auditing:
1. At the annual General Meeting of
Shareholders, an independent auditing firm which legally operates in Vietnam
and which is permitted by the State Securities Commission to audit listed
companies shall be appointed to carry out the auditing of the Company for the
next financial year on the basis of the terms and conditions as agreed by the
Board of Management. (In the first financial year, the Board of Management
shall appoint an auditing firm to conduct the auditing of the Company after the
business registration certificate is issued).
2. The Company shall be required to prepare
and send the annual financial statements to the independent auditing firm after
the end of a financial year.
3. The independent auditing firm shall
inspect, certify and make a report on the annual financial statements which
reflects the income and expenditure of the Company, and shall prepare an audit
report and submit same to the Board of Management within a period of two (2)
months from the end of the financial year. The staff of the independent
auditing firm who audit the Company must be approved by the State Securities
Commission.
4. A copy of the audit report must be sent
with the annual financial statements of the Company.
5. The auditor who audits the Company shall
be permitted to attend all meetings of the General Meeting of Shareholders and
shall be entitled to receive other notices and information which the
shareholders are entitled to receive and relating to the General Meeting of
Shareholders, and shall be entitled to express his/her opinions about issues
relating to auditing.
XVII. SEAL
Article 49. Seal:
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2. The Board of Management and the managing
director or chief executive officer shall use and manage the seal in accordance
with the applicable law.
XVIII. TERMINATION OF
OPERATION AND LIQUIDATION
Article 50.
Termination of operation:
1. The Company may be dissolved or terminated
in the following cases:
a. The duration of operation of the company
expires, including after any extension;
b. A court declares the Company bankrupt in
accordance with the applicable law;
c. The General Meeting of Shareholders makes
a decision on early dissolution.
d. Other cases as stipulated by law.
2. The early dissolution of the Company
(including any extended period) shall be decided by the General Meeting of
Shareholders and shall be implemented by the Board of Management. The decision
on dissolution must be reported to, or must be approved by (if so required by
law) the competent body in accordance with regulations.
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1. Members of the Board of Management failed
to uniformly administer the work of the Company, resulting in failure to obtain
the number of votes required by the regulations to operate the Board of
Management.
2. The shareholders have failed to agree, so
that the number of votes required by the regulations cannot be obtained in
order to elect members to the Board of Management.
3. There is internal disagreement within the
Company and two or more factions of shareholders are divided so that
dissolution is the option in the best interests of all shareholders.
Article 52. Extension
of duration of operation:
1. The Board of Management shall convene a
meeting of the General Meeting of Shareholders within a time-limit of at least
seven (7) months prior to expiry of the duration of operation so that the
shareholders may, at the request of the Board of Management, vote on extension
of duration of operation of the Company.
2. The duration of operation shall be
extended when there is approval from sixty five (65) per cent or more of the
total votes of shareholders with voting rights who are present directly or via
their authorized representatives at the General Meeting of Shareholders.
Article 53.
Liquidation:
1. The Board of Management must establish a
liquidation committee consisting of three (3) members, no less than six (6)
months before expiry of the duration of operation of the Company or after a
decision on dissolution of the Company is made. The General Meeting of
Shareholders shall appoint two members to the committee and the Board of
Management shall appoint one member from an independent auditing firm. The
liquidation committee shall formulate its operational rules. Members of the
liquidation committee may be selected from the employees of the Company or they
may be independent experts. All expenses relating to liquidation shall be paid
by the Company in priority to other debts of the Company.
2. The liquidation committee shall be
responsible to report its date of establishment and date of commencement of
operation to the business registration body. From such point of time4, the
liquidation committee shall represent the Company in all work relating to the
liquidation before a court and administrative bodies.
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a. Expenses of liquidation;
b. Wages and insurance costs for employees;
c. Taxes and other payments of a tax nature
which the Company must pay to the State;
d. Loans (if any);
e. Other debts of the Company;
f. After all the debts in items (a) to (e)
above have been paid, the balance shall be distributed to shareholders.
Preference shares shall be paid in priority.
XIX. INTERNAL DISPUTE
RESOLUTION
Article 54. Internal
dispute resolution:
1. Where a dispute or a complaint relating to
the operation of the Company or to the rights of shareholders arises out of
this Charter or out of any rights or obligations stipulated in the Law on
Enterprises, in other laws or administrative regulations between:
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b. A shareholder with the Board of
Management, the Inspection Committee, the managing director or chief executive
officer or a senior manager, then:
The relevant parties shall attempt to resolve
such dispute by way of negotiation and conciliation. Except where such dispute
involves the Board of Management or the chairman of the Board of Management,
the chairman of the Board of Management shall preside over resolution of the
dispute and shall require each party to present the real issues in the dispute
within a period of ….. business days from the date of the dispute arising. If
the dispute involves the Board of Management or the chairman of the Board of
Management, any party may require …. to appoint an independent expert who shall
act as arbitrator during the course of resolution of the dispute.
2. If a decision on reconciliation is not
made within a time-limit of six (6) weeks from the beginning of the
reconciliation process or if the decision of the reconciling medium is not
accepted by the parties, then any party may take such dispute to economic
arbitration or to the economic court.
3. The parties shall bear all costs relating
to procedures for negotiation and conciliation. The court shall decide which
party is to bear the costs of the court.
XX. ADDITION TO AND
AMENDMENT OF THIS CHARTER
Article 55. Addition
to and amendment of this Charter:
1. Any addition to and amendment of this
Charter must be considered and decided by the General Meeting of Shareholders.
2. Where any regulations of law relating to
the operation of the Company have not been mentioned in this Charter or where
new regulations of law are different from the content of this Charter, such
regulations of law shall automatically apply to, and shall regulate the
operation of the Company.
XXI. EFFECTIVE DATE
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1. This Charter comprises XXI Chapters and
fifty seven (57) articles, and was passed by the General Meeting of
Shareholders establishing the shareholding Company …… on date… month… year… and
the General Meeting of Shareholders approves the validity of the whole text of
this Charter.
2. This Charter is made in ten (10) copies,
each with the same validity, of which:
a. 1 copy shall be submitted to the State
Notary Public in the locality;
b. 5 copies shall be registered with an
authority in accordance with regulations of the municipal or provincial
people’s committee; and
c. 4 copies shall be kept at the office of
the Company.
3. This charter shall be the sole and
official Charter of the Company.
4. Copies or extracts of the Charter of the
Company shall be valid when they bear the signature of the chairman of the
Board of Management or the signatures of at least half of the total number of
members of the Board of Management.
Article 57. Signatures
of founding shareholders or legal representative of the company: