Nội dung toàn văn Decision No.07/2002/QD-VPCP of November 19, 2002 of the minister-director of the government’s office promulgating the model charter applicable to listing companies
THE OFFICE OF GOVERNMENT
SOCIALIST REPUBLIC OF VIET NAM
Hanoi, November 19, 2002
OF THE MINISTER-DIRECTOR OF THE GOVERNMENT’S OFFICE PROMULGATING THE MODEL CHARTER APPLICABLE TO LISTING COMPANIES
THE MINISTER-DIRECTOR OF THE GOVERNMENT�S OFFICE
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the June 12, 1999 Law on Enterprises;
Pursuant to the Prime Minister’s Decision No. 40/2002/QD-TTg of March 18, 2002 on competence to promulgate legal documents for the exercise of State management over branches or fields managed by the agencies attached to the Government;
Pursuant to the Prime Minister’s Official Dispatch No.1170/CP-QHQT of September 30, 2002 on the implementation of conditions for the second disbursement of the SCPL (ADB);
At the proposal of the chairman of the State Securities Commission,
Article 1.- To promulgate together with this Decision the Model Charter applicable to listing companies.
Article 2.- Basing themselves on the Model Charter stated in Article 1 of this Decision, the listing companies shall properly supplement and amend their own charters within 18 months as from the date this Decision takes effect. In case of necessity, the chairman of the State Securities Commission may consider and extend such time limit, but the extended duration shall not exceed 18 months.
Article 3.- Joint-stock companies which prepare for the listing, when compiling the dossiers of listing registration, shall have to commit themselves to amend their own charters to suit the Model Charter stated in Article 1 of this Decision and effect the supplementation and amendment of the charters within the time limit prescribed in Article 2 of this Decision.
Article 4.- This Decision shall take effect as from January 1, 2003.
The chairman of the State Securities Commission and the heads of concerned units shall have to implement this Decision.
FOR THE MINISTER-DIRECTOR OF THE GOVERNMENT’S OFFICE
MODEL CHARTER APPLICABLE TO LISTING COMPANIES
(Promulgated together with Decision No. 07/2002/QD-VPCP of November 19, 2002)
CHARTER JOINT-STOCK COMPANY
(The Company’s name)
This Charter of [name of the company] (hereinafter called "Company") serves as legal basis for a joint-stock company, to be set up under the Enterprise Law (other laws specifically prescribed for companies such as telecommunications, transport, etc.) and under the decision of the Minister The Charter, the regulations of the Company, the resolutions of shareholders and the Managing Board, if approved regularly in accordance with the relevant legislation, shall be the binding rules and regulations to carry out the business activities of the Company.
This Charter is adopted by Company [when setting up the Company] or [associated with the offer for the first sale of shares to the public] or [shareholders of the Company under the resolution passed regularly at the shareholders meeting organized officially on day. month. year 200�].
I. DEFINITION OF TERMS IN THE CHARTER
Article 1.- Definition
1. Except otherwise provided for by clauses or contexts of this Charter, the following terms shall mean as defined below:
a. "Board" means the Managing Board of the Company.
b. "Business geographical area" means Vietnamese or foreign territory.
c. "Charter capital" means the capital contributed by all shareholders and prescribed in Article 5 of this Charter.
d. "The Enterprise Law" means the Enterprise Law passed on June 12, 1999 by the National Assembly.
e. "The founding date" means the date when the Company is granted the business registration certificate.
f. "Legislation" means all legal documents defined in Article 1 of the Law on Promulgation of Legal Documents, promulgated on November 12, 1996.
g. "Managerial officials" mean the executive general director (director), the deputy- executive general director, the chief accountant and other officials appointed by the Managing Board to be managerial officials of the Company.
h. "The concerned persons" mean any individuals or organizations prescribed in Article 3 (14) of the Enterprise Law.
i. "Shareholders" mean all natural persons or legal persons, whose names are inscribed in the Company’s shareholder registers in their capacity as share owners.
j. "Duration" means the initial duration of the Company as provided for in Article 2 of this Charter and every extended time, adopted by a resolution of the shareholders general assembly and approved by the Managing Board.
k. "Vietnam" means the Socialist Republic of Vietnam.
2. In this Charter, any reference to any clause or any document shall cover their amendments or substitute documents.
3. The headings included herein aim only to facilitate the monitoring and do not affect the significance of this Charter;
4. Words and terms defined in the Enterprise Law (if not contradictory with subjects or contents) shall have the meanings similar to those in this Charter.
II. NAME, FORM, HEAD-OFFICE, BRANCH(ES), REPRESENTATIVE OFFICE(S) AND OPERATION DURATION OF THE COMPANY
Article 2.- Name, form, head-office, branch(es), representative office(s) and operation duration of the Company
1. The lawful name of the Company in Vietnamese is " Cp". The lawfully registered name of the Company in English is "..,". [ The transaction name of the Company is ""].
2. The Company is a joint-stock company having its legal person status in accordance with Vietnamese law.
3. The registered head-office of the Company is:
4. The Managing Board chairman or the executive general director (director) is the Company’s representative at law.
5. The Company may set up branch(es) and representative office(s) in business geographical areas in order to achieve its objectives in accordance with the Resolution of the Managing Board and within the scope permitted by law.
6. Except when the Company terminates its operation ahead of time according to Articles 43.2 and 44 or extends its operation according to Article 45 of this Charter, its operation duration shall start from its founding date and is [indefinite]/[ ...] years.
III. OBJECTIVES, BUSINESS AND OPERATION SCOPE OF THE COMPANY
Article 3.- The objectives of the Company
1. The Company’s business fields are
2. The Company’s objectives are
3. [Other objectives]. If any of these objectives requires the managing agency’s approval, the Company can materialize such objective only after it is approved by the competent body.
Article 4.- Scope of business and operation
1. The Company is allowed to plan and carry out all business activities according to the provisions of the business registration certificate and this charter and in accordance with the provisions of law, and adopt appropriate measures to attain its objective(s).
2. The Company may effect other business forms permitted by law, which the Managing Board deems most beneficial to the Company.
IV. CHARTER CAPITAL, SHARES AND FOUNDING SHAREHOLDERS
Article 5.- Charter capital, shares, founding shareholders
1. All the shares issued by the Company are common shares, including the shares held by the State or the shares of the Company on the date this Charter is adopted include common shares, [dominant shares], [special shares] and [preference shares]. The rights and obligations accorded to (each type of) shares are prescribed in Article 10.
2. On the date this Charter is adopted, the Company’s charter capital is VND [in numerals] (in words).
The Company’s total charter capital is divided into [.....] shares with the par-value of [VND 10,000/share].
3. The Company can increase its charter capital only when it is so approved by the shareholders general assembly in accordance with the provisions of law.
4. The Company may issue other kinds of preference shares after it is so approved by the shareholders general assembly in accordance with the provisions of law.
5. The Company may issue shares with prices paid by installments. The installment payment periods and the periodically-paid amount must be determined at the time of share issuance.
6. [Name, address and quantity of shares as well as other details on the founding shareholders as prescribed by the Enterprise Law shall be mentioned in Appendix I enclosed herewith. This Appendix constitutes a part of this Charter].
7. The new common shares expected to be issued shall be given priority in offering for sale to shareholders in percentage corresponding to the percentage of the common shares of each shareholder in the Company. The Company must announce the sale offer, clearly stating the volume of shares offered for sale and the reasonable duration (not less than twenty one days) so that the shareholders shall order the purchase. The shares not bought up by shareholders shall be subject to the Managing Board’s control. The Managing Board may distribute (or donate the rights to select and purchase) those shares to various subjects under the conditions and by modes, which the Managing Board deem appropriate, provided that those shares must not be sold under conditions more favorable than the conditions offered for sale to shareholders, unless otherwise agreed upon by the shareholders or where the shares are sold via securities trading centers.
8. The Company may buy shares of its own (including the reimbursed shares) by modes prescribed in the Enterprise Law and relevant laws in accordance with the competence permitted by the shareholders general assembly under the provisions of this Charter and the Enterprise Law. Shares repurchased by the Company shall be kept as treasury shares and may be offered by the Managing Board for sale in the form permitted by the shareholders general assembly and compatible with the provisions of the legislation on securities and securities market.
9. The Company may issue guaranteed and non-guaranteed bonds, and, upon the ratification by the shareholders general assembly, may issue bonds which can be converted into shares and the rights to order the purchase, permitting the right holders to purchase shares in accordance with the provisions of legislation on securities and securities markets.
Article 6.- Share certificate
1. Every shareholder is entitled to be granted a certain share certificate, except for cases defined in Article 6.8.
2. Every issued share certificate must be stamped with the Company’s seal and signed by the Company’s representative at law according to the provisions in the Enterprise Law. This certificate shall clearly state the volume and type of relevant shares, the money amount already paid, the holder’s full name (if it is the registered share) and other information stipulated by the Enterprise Law. A registered share certificate only represents a type of share.
3. Under the provisions of this Charter, any person having his/her name inscribed in the shareholders register relating to a share of any type shall be granted a certificate free of charge (in case of issuance) within two months (or longer as prescribed by the issuance clause) after the purchase or transfer (in case of transfer).
4. In cases where only a number of registered shares in a registered share certificate is transferred, the former certificate shall be abolished and a new certificate acknowledging the remaining share numbers shall be granted free of charge.
5. If a registered share certificate is damaged, erased or crossed, lost, stolen or destroyed, a new share certificate acknowledging the corresponding number of shares shall be granted to the holder at his/her request provided that he/she must produce evidencing papers and pay all relevant expenses to the Company.
6. The bearer share certificate holders must bear independent responsibility for the preservation of certificates and the Company shall not be responsible in all cases where these certificates are stolen or used for the purposes of deception.
7. All forms of share certificates or bonds or other securities of the Company (except sale offer letters, provisional certificates and similar documents) shall be issued with seal and specimen signature of the Company’s representative at law, except otherwise provided for by existing certificate-related provisions and conditions.
8. Based on the provisions of the Enterprise Law and the legislation on securities and securities market, the Company may issue registered shares not in form of certificate and permit all shares (regardless of whether the shares are issued in this form or not) to be transferred not necessarily with transfer documents; or depending on each time, the Managing Board may issue other regulations to replace the corresponding regulations in this Charter on certificate and share transfer.
Article 7.- Share transfer
1. All shares can be freely transferred except otherwise provided for by this Charter and law. All shares listed at the Securities Trading Centers shall be transferred under the regulations of the State Securities Commission and the Securities Trading Centers.
2. [Within 3 years as from the founding date, the founding shareholders must together hold at least 20% of the total number of transferable common shares and in cases where the number of these shares are transferred to persons other than the founding members, the consent of the shareholders general assembly in the Company is required.
3. *[The founding shareholders must not withdraw from their capacity as the Company’s members within the first two fiscal years of the Company. The termination of the member’s capacity must be proposed in writing and sent officially by mail to the Managing Board. In this case, the remaining founding shareholders shall be given priority right to buy first the number of shares of the above founding shareholders in a percentage corresponding to the number of their owned shares].
4. Except otherwise provided for by the Managing Board (in accordance with the provisions of the Enterprise Law), all transfers of registered shares can be effected through written transfer by the common way or any other way acceptable to the Managing Board, or can also be effected through handing. The registered shares must be transferred via the Securities Trading Centers in accordance with the regulations and statutes of the State Securities Commission and the Securities Trading Centers. The transfer papers are signed by or on behalf of the transferor and (except for cases where share certificates have already been fully paid) by or on behalf of the transferee. The transferor remains to be owners of relevant shares until the name of the transferee is inscribed in the shareholders register, except where the transferor authorizes the transferee to attend the shareholders general assembly taking place during that time under the provisions in the Enterprise Law.
5. The Managing Board shall be fully entitled to refuse to register the transfer of any registered share not yet fully paid.
6. When a shareholder dies, his/her heirs or the managers of the deceased’s property shall be recognized by the Company as the only person(s) entitled to own or enjoy benefits from the shares, but this regulation shall not free the dead shareholder’s property from all liabilities associated to any shares held by such person.
Article 8.- Withdrawal of shares
1. If a shareholder fails to fully pay on time the money amount to be paid for share purchase, the Managing Board may send a notice to such shareholder at any time, requesting him/her to pay such amount together with the possible accrual of interests thereon and the expenses incurred by the Company due to the failure of payment.
2. The above-mentioned notice must clearly state the new payment time limit (at least 7 days as from the date of sending the notice) and venue and clearly state that if the payment is not made strictly according to the request, the shares not yet paid up shall be withdrawn.
3. If the requests stated in a notice mentioned above are not satisfied, the Managing Board may withdraw every share already stated in the notice at any time before fully paying all payable amounts, interest amounts and relevant expenses. Such withdrawal shall cover all dividends announced for the withdrawn shares and not yet paid by the time of withdrawal. The Managing Board may accept the hand-over of withdrawn shares under the regulations below and in other cases prescribed in this Charter.
4. A withdrawn or handed share shall become the Company’s property and may be sold, redistributed or handled in other ways for the person who had once held such share before the withdrawal or hand-over, or for any other person under the conditions and by ways, which Managing Board deems appropriate. If necessary, the Managing Board may authorize a number of people to transfer the above share to any other person.
5. A shareholder who holds the withdrawn or handed shares shall have to abandon his/her capacity as shareholder over such shares but still have to pay to the Company all money amounts related to those shares, which must be paid to the Company by the time of withdrawal or hand-over plus the interests thereon in percentage (not more than.. %/year) under decision of the Managing Board as from the date of withdrawal or hand-over to the date of payment and the Managing Board shall have full power to decide on the forced payment of the entire share value by the time of withdrawal of hand-over or may exempt or partially reduce such payable money amount.
6. Upon the share withdrawal, notices on the withdrawal shall be sent to the persons who hold such shares before the time of withdrawal; but in all circumstances, the withdrawal shall not be invalidated for the reasons of missing out or carelessness in sending the notices.
V. ORGANIZATIONAL STRUCTURE, MANAGEMENT AND CONTROL
Article 9.- Structure of managerial organization
The Company’s managerial organization is structured to include:
a. The shareholder’s general assembly;
b. The Managing Board;
c. The executive general director (or director); and
d. The Control Board.
VI. SHAREHOLDERS AND SHAREHOLDERS GENERAL ASSEMBLY
Article 10.- Rights of the Company’s shareholders
1. Shareholders are owners of the Company and have rights and obligations corresponding to the number of shares and types of shares they own. The responsibility of each shareholder is restricted according to the share portions they hold.
2. Holders of common shares shall have the following rights:
a. To attend and speak at the shareholders general assembly and exercise the right of voting directly or through authorized representatives;
b. To receive dividends;
c. To freely transfer the fully paid shares according to the provisions of this Charter and law;
d. To be given priority in the purchase of new shares offered for sale corresponding to the portions of common shares they have owned;
e. To check information related to shareholders on the list of those fully qualified to participate in the shareholders general assembly and request the correction of inaccurate information;
f. In case of the dissolution of the Company, to be entitled to receive the Company’s property corresponding to the portions of shares they have owned;
g. To request the Company to repurchase their shares in the cases prescribed in Article 64.1 of the Enterprise Law; and
h. Other rights prescribed by this Charter and laws.
[Filling the rights over other assorted shares].
3. A shareholder or a group of shareholders holding over 10% of the common shares for six consecutive months or more shall have the following rights:
a. To nominate members of the Managing Board or Control Board according to the corresponding provisions in Articles 19.3 and 31.2;
b. To request the convening of shareholders general assembly;
c. To examine and receive the copy or the extract of the list of shareholders entitled to attend and to vote at the shareholders general assembly; and
d. Other rights prescribed in this Charter.
Article 11.- Obligations of shareholders
The shareholders shall have the following obligations:
a. To abide by the Company’s Charter and regulations; the Managing Board’s decisions and the shareholders general assembly’s resolutions;
b. To pay for the purchase of shares according to the share volumes already registered for purchase according to the prescribed procedures; and
c. To fulfill other obligations prescribed by law.
Article 12.- Shareholders general assembly
1. The shareholders general assembly is the supreme power body of the Company, which may be attended by all shareholders with the right to vote. The shareholders general assembly shall be organized once a year.
2. The shareholders annual general assembly shall be convened by the Managing Board at a venue in Vietnam which is stipulated by the Managing Board, depending on each time. The shareholders annual general assembly shall decide on matters prescribed by law and this Charter. Particularly, shareholders shall adopt the annual financial reports of the Company and the financial budget for the subsequent fiscal year. Independent auditors shall be invited to attend the general assembly so as to advise on the adoption of the annual financial reports.
3. The Managing Board must convene extraordinary general assembly of shareholders in the following cases where:
a. The Managing Board deems it necessary for the benefits of the Company.
The convening is necessary if the independent auditors deem that the meeting is important for discussing the auditing reports or the financial situation of the Company and so does the Managing Board.
b. The annual accounting balance sheet, the quarterly or semi-annual reports or the report on auditing of the fiscal year show that the charter capital has been lost by half.
c. The number of the Managing Board members is smaller than the number prescribed by law or smaller than half of the number of members prescribed in the Charter;
d. A shareholder or a group of shareholders prescribed in Article 10.3 of this Charter requests the convening of the general assembly in a written petition clearly stating the reasons for and purposes of, such meeting, with signatures of concerned shareholders (the written petition can be made in many copies so as to acquire enough signatures of all concerned shareholders); and
e. The Control Board requests the convening of such meeting if it has grounds to believe that the Managing Board members or the high-ranking managers seriously breach their obligations under Article 86 of the Enterprise Law or the Managing Board acts or intends to act beyond the scope of its powers.
a. The Managing Board must convene a shareholders meeting within 30 days as from the date of receiving the requests stated at Point 3d or 3e above.
b. Where the Managing Board fails to convene the above-mentioned meeting, the Control Board shall have to convene the shareholders meeting;
c. Where the Control Board fails to convene the meeting, shareholders or a group of shareholders with requests stated at Point 3d of this Article may convene the shareholders meeting.
d. All expenses for convening and organizing the shareholders meeting shall be paid by the Company. These expenses do not cover shareholders spendings when attending the shareholders general assembly, including expenses for meals, accommodation and travel.
Article 13.- Rights and tasks of the shareholders general assembly
1. The shareholders annual general assembly has the right to discuss and adopt the following:
a. The annual financial reports;
b. The Control Board’s report on the situation of the Company;
c. The Managing Board’s report;
d. The reports of auditors; and
e. The Company’s short-term and long-term development plans.
2. The shareholders annual and extraordinary general assemblies have the rights to issue decisions by way of adopting resolutions on the following issues:
a. The ratification of annual financial reports;
b. The level of dividends to be paid annually for each type of shares in conformity with the Enterprise Law and the rights closely associated with such types of share provided that this dividend level is not higher than the level proposed by the Managing Board after consulting with shareholders at the shareholders general assembly;
c. The number of members of the Managing Board;
d. The selection of the auditing company;
e. The election, dismissal and replacement of members of the Managing Board or the Control Board and the ratification of the appointment of the executive general director by the Managing Board;
f. The total amount of remuneration of the Managing Board members and the remuneration report of the Managing Board;
g. The supplementation and amendment of the Charter;
h. The type of shares and quantity of new shares to be issued for each type of share, and the transfer of shares of the founding members within the first three years as from the founding date;
i. Merger or conversion of the Company;
j. Reorganization and dissolution (liquidation) of the Company and the designation of the liquidator.
k. The examination and handling of violations committed by the Managing Board or the Control Board, which have caused damage to the Company and its shareholders;
l. The transaction of selling assets of the Company or any branch or the purchase transactions effected by the Company or branches with the value of 50% or higher of the value of the assets of the Company and its branches, calculated according to the accounting books latest audited;
m. The Company’s purchase or re-purchase of more than 10% of the shares or shares of any type being issued;
n. That the executive general director is concurrently the chairman of the Managing Board;
o. The signing of contracts by the Company or branches with the persons prescribed in Article 87.1 of the Enterprise Law with value being equal to or higher than 20% of the total value of the Company and its branches, calculated according to the accounting books; and
Other issues as provided for by this Charter and other regulations of the Company;
3. Shareholders must not vote for any resolution to adopt:
a. The contracts prescribed in Article 13.2 if such shareholders or the persons relating to such shareholders are one party to the contract; or
b. The purchase of shares of such shareholders or any person relating to such shareholders.
4. The shareholders general assembly must discuss and vote on resolutions on issues already included in the agenda of the meeting.
Article 14.- The authorized representatives
1. Those shareholders eligible to attend the shareholders general assembly as prescribed by law may personally attend or authorize their representatives to attend. The authorized representatives must not necessarily be shareholders.
2. The designation of to be- authorized representatives must be made in writing according to a common form or other forms approved by the Managing Board and:
a. In cases where they are individuals, the written designations must be signed by the authorizers or their lawyers; and
b. In cases where they are companies, the written designations must be signed and stamped by a lawyer or the lawfully authorized persons of the companies.
3. In cases where the written designation of a to be-authorized representative is signed by a lawyer on behalf of the authorizer, the letter of authorization of the lawyer or the valid copy thereof must be (if not yet registered with the Company previously) submitted together with the written designation of the representative to be authorized. If not, the designation of the to be-authorized representative shall be considered invalid.
4. The votes of the authorized representatives within the authorized scopes shall take effect even when the shareholders, who designated such authorized representatives, have:
a. died or lost the capacity to control their acts;
b. cancelled the designation of authorized person; or
c. cancelled the competence of the person who performs the authorization.
However, this shall not apply if the Company receives notices on events over 48 hours before the meeting or before the meeting is re-convened.
Article 15.- Change of rights
1. With the approval of the shareholders general assembly as provided for in Article 13.2, when the Company’s share capital is divided into different kinds of shares, according to the Enterprise Law, the special rights associated with each kind may be changed or annulled with the written agreement of the persons who hold at least 65% of the voting rights of the issued shares of such kind or with the resolution adopted by the persons who hold at least 65% of the voting rights of all shareholders present at a separate meeting of people who hold shares of that kind.
2. The number of delegates necessary for organizing such a meeting must be at least two shareholders (or their authorized representatives), who hold at least one third of the value of the par values of the issued shares of such kind (but if the above-mentioned number of delegates at the meeting is not enough, the meeting shall be re-organized within 30 subsequent days and if any person who holds shares of such kind is present in person or through the authorized representative, the required number of delegates shall be considered enough). Also at the above-said separate meetings, any persons holding shares of such kind are present in person or via their representatives may request secret ballots and each person, when casting his/her ballot, shall have one voting card for each of the owned shares of such kind.
3. The procedures for such separate meetings shall comply with the provisions in Articles 17 and 18.
4. Except otherwise prescribed in articles on share issuance, the special rights associated with the types of shares enjoying privileges in a number of or all issues related to the division of profits or assets of the Company shall not be changed when the Company additionally issues shares of the same class.
Article 16.- Convening of shareholders general assembly, its agenda and notices
1. The Managing Board shall convene the shareholders general assembly except for cases prescribed in Articles 12.4b or 12.4c.
2. The persons who convene the shareholders general assembly must perform the following tasks:
a. Preparing a list of shareholders eligible to attend and vote at the general assembly within 30 days before the shareholders general assembly opens; the agenda and documents must conform to laws and regulations of the Company;
b. Determining time and venue for the general assembly; and
c. Notifying all shareholders of the general assembly and sending them the notices thereon.
3. The notices on shareholders general assembly must contain the meeting agenda and reasonable information on issues to be discussed and voted on at the general assembly. They can be handed to shareholders or sent by post offices according to the latter’s registered addresses or the addresses given by such shareholders in service of information sending. If shareholders have notified the Company in writing of their fax numbers or email addresses, the meeting notices can be sent to such fax numbers or email addresses. Where shareholders are employees working in the Company, the notices may be put into closed envelopes and handed to them at their work places. The notices must be sent at least 15 days before the shareholders general assembly opens (as from the date the notices are sent or carried in a lawful manner, paid with postage or put into letter-boxes). If the Company has its own website, the notices on the shareholders general assembly must be announced thereon simultaneously with the sending of notices to shareholders.
4. Shareholders or groups of shareholders, mentioned in Article 10.3 of this Charter, are entitled to propose issues to be included into the agenda of the shareholders general assembly. The proposals must be made in writing and sent to the Company at least 3 days before the shareholders general assembly begins. The proposals must contain the full names of the shareholders, the number and type of shares they hold, and the contents of the proposals for inclusion into the meeting agenda.
5. The conveners of the shareholders general assemblies may only refuse the proposals related to Clause 4 of this Article if:
a. The proposals are not sent within the prescribed time limits;
b. At the time of proposal, the shareholders or groups of shareholders cannot acquire at least 10% of the common shares for a period of six consecutive months or more;
c. The proposals do not contain necessary information; and
d. The proposed issues do not fall within the scope of the shareholders general assembly’s jurisdiction to discuss and adopt resolutions thereon.
6. For each issue in the meeting agenda, the Managing Board must prepare a draft resolution thereon.
7. If all shareholders with the voting right are present in person or via their authorized representatives at the shareholders general assembly, the resolutions unanimously adopted by the general assembly are all valid even when the shareholders general assembly is convened improperly or the contents of the meeting are not rationally included into the agenda.
Article 17.- Conditions for conducting the shareholders’ general assembly and making the minutes of the shareholders general assembly
1. The shareholders general assembly shall be presided over by the Managing Board chairman or vice-chairman if the chairman is absent or by any other person elected by the general assembly. In cases where none of them can preside over the general assembly, the Managing Board member holding the highest position present at the meeting shall organize a meeting to elect chairperson of the general assembly, who must not necessarily be the member of the Managing Board. The chairman or vice-chairman of the Managing Board or the elected chairperson shall appoint a secretary to make the minutes of the general assembly. In case of election of the chairperson, the name of the elected chairperson and the number of votes for him/her must be made public.
2. Except for cases prescribed in Clause 3 of this Article, the resolutions of the shareholders general assembly must be adopted by 51% or more of the total votes of the shareholders with voting right, who are present in person or via their authorized representatives at the shareholders general assembly.
3. The shareholders general assembly’s resolutions related to the amendment and supplementation of the Charter, types and quantity of shares offered for sale, the merger, re-organization or dissolution of the Company must be adopted by 65% or higher of the total votes of the shareholders with voting right, who are present in person or via their authorized representatives at the shareholders general assembly.
4. The persons who preside over the shareholders general assembly shall have to keep all the minutes thereof and send them to all shareholders immediately after the conclusion of the shareholders general assembly. These minutes are considered true evidences on things already done at the general assembly unless objections to contents of the minutes are made lawfully within 10 days after the minutes are sent. The minutes shall be made in Vietnamese language, signed for certification by the chairperson and secretary of the general assembly, and made according to the provisions of the Enterprise Law and this Charter. All the records, minutes, books of participating shareholders signatures and the written authorizations for participation must be kept at the Company’s office.
5. The shareholders’ general assembly shall be conducted when the number of participating shareholders represents at least 51% of the voting shares. Where the necessary number of delegates is not enough within 30 minutes as from the time set for the meeting to open, the general assembly must be reconvened within 30 days as from the date planned to organize the first shareholders’ general assembly. In the reconvened general assembly, the number of participating members being shareholders and authorized representatives must represent at least 30% of the voting shares. When the second general assembly fails to achieve the necessary number of delegates within 30 minutes as from the time set for the meeting to open, the third general assembly of shareholders can be convened within 20 days as from the date planned to organize the second general assembly and in this general assembly any number of participating shareholders and authorized representatives shall be valid and the participants shall all be entitled to decide on all issues expected to be lawfully approved by the first shareholders general assembly.
6. On the date the shareholders general assembly is organized, the shareholder- registering procedures must be carried on until the full registration of all shareholders eligible to attend.
7. When carrying out the shareholder registration, the Company shall grant each shareholder or authorized representative with the voting right a voting card on which the registration number and full name of such shareholder or authorized representative as well as the serial number of his/her voting card are inscribed. The voting at the general assembly shall be conducted by way of collecting the number of voting cards for a resolution first, then the number of voting cards against it later, and counting the total number of votes for or against to decide. The numbers of votes for, against and blank votes on an issue shall be announced by the chairperson immediately after the voting. The general assembly shall choose among the delegates the persons responsible for counting the votes or supervising the vote counting, and if the general assembly fails to do so, the chairperson shall choose such persons.
8. The shareholders who come to the share-holders’ general assembly late shall have the right to register immediately, then to attend and vote right at the general assembly, but the chairperson shall not have to stop such general assembly for them to make registration and the effect of the already conducted votings shall not be affected.
9. The chairperson’s decisions on the order and procedures or events arising beyond the agenda of the shareholders general assembly shall be top-decisive.
10. Not necessarily to seek the general assembly’s opinions, the chairperson of the shareholders’ general assembly may, at any time, decide to delay a general assembly with enough necessary number of delegates to another time and at another venue if he/she deems that (a) the participating members cannot have comfortable seats at the venue where the general assembly is organized, (b) the acts of the persons present thereat obstruct or possibly obstruct the orderly proceedings of the meeting, or (c) the delay is necessary for the works of the general assembly to proceed regularly. Besides, with the agreement or request of the shareholders’ general assembly convened with enough necessary number of delegates, the meeting chairperson may delay the general assembly. The reconvened general assembly shall not consider any issues beyond those which would have been settled lawfully at the previously delayed general assembly.
11. The general assembly chairperson or secretary may carry out activities which he/she deems necessary for conducting the shareholders� general assembly in a regular and orderly manner; or for the general assembly to reflect the aspiration of the majority of the participants.
12. The Managing Board may request shareholders or authorized representatives who wish to attend the shareholders� general assembly to submit to the inspection or other security measures which it deems appropriate. After a thorough scrutiny, the Managing Board may refuse the attendance by or expel a shareholder or an authorized representative, who refuses to abide by the regulations on such inspection or security measures, from the general assembly.
13. The Managing Board may take measures, which it deems appropriate after careful consideration, to:
a. Regulate the number of persons present at the main venue for the shareholders� general assembly;
b. Ensure safety for all people present at such venue;
c. Create conditions for the shareholders to attend the general assembly (or continue to attend it).
The Managing Board may change these measures at any time, which may include and be not limited to the granting of entrance papers or the use of other options.
14. In cases where the shareholders’ general assembly applies these measures, when determining the venue for the general assembly, the Managing Board may:
a. Announce that the general assembly shall be held at the venue inscribed in the notices and the general assembly chairperson shall be present there (" the main venue of general assembly");
b. Arrange, organize so that shareholders or authorized representatives, who are unable to attend under this Clause, or the persons who wish to attend at places other than the main venue of the general assembly, can simultaneously attend the general assembly.
The notices on organization of the general assembly must not necessarily detail the organizational measures as provided for in this Clause.
15. In this Charter (except otherwise required by circumstances), every shareholder shall be considered as having attended the general assembly at the main venue.
Article 18.- Ratifying resolutions adopted in form of sending documents
1. Resolutions may be adopted by shareholders representing at least 51% of the voting right in form of documents according to the procedures prescribed in Clause 2 of this Article.
2. The Managing Board shall have the following responsibilities for the resolutions of shareholders to be adopted in form of sending documents:
a. To decide on issues to be considered, form and contents of casting secret ballots according to this Charter and law;
b. To send voting cards and all necessary documents to all shareholders eligible to attend the shareholders� general assembly so that they can make decisions with enough information.
c. To decide on the voting results and announce such results within 15 days from the date inscribed in the voting cards, on which the voting cards must be returned.
3. The resolutions adopted in form of sending documents as provided for in Clause 1 of this Article shall be valid as the resolutions adopted by the shareholders’ general assembly.
VII. THE MANAGING BOARD
Article 19.- Composition and term
1. The number of the Managing Board members shall be neither lower than  nor more than  persons. Each member of the Managing Board shall have a maximum term of office of 3 years and may be re-elected at the subsequent shareholders� general assembly. When electing members of the Managing Board, the Company must attain the objective that at least one-third of the members shall be elected or re-elected at each annual general assembly of shareholders. At least one-third of the members of the Managing Board must be non-executive independent members.
2. [( ) members of the Managing Board shall be nominated by the founding shareholders according to the share ownership portion of each founding shareholders. The founding shareholders are entitled to nominate Managing Board members by way of lumping all their share ownership portions for voting.
a. Each shareholder holding more than 10% of the shares with the voting right for six consecutive months or more may nominate one candidate for election to the Managing Board.
b. The shareholders holding less than 10% of the shares with the voting right for 6 consecutive months or more may add up the number of each person’s voting shares to nominate members of the Managing Board. If the total of their voting shares accounts for between 10% and under 30%, they are entitled to nominate 01 candidate for election to the Managing Board; if between 30% and 50%, they are entitled to nominate 2 candidates; if between 50% and 70%, they may nominate 3 candidates; and if more than 70%, they may nominate 4 candidates.
4. A member of the Managing Board shall lose his/her membership capacity in the following cases:
a. That member is no longer qualified to be the Managing Board member as provided for by the Enterprise Law or is banned by law from working as the Managing Board member.
b. That member sends his/her written application to resign to the Company’s head-office.
c. That member is affected with mental disorder and other members of the Managing Board have professional evidences to show that such person no longer has the act capacity.
d. That member is absent, failing to attend the Managing Board’s meetings for 6 consecutive months without the Managing Board’s permission and the Managing Board has decided that his/her position is left vacant.
e. That member is dismissed from the Managing Board membership under the resolution of the shareholders’ general assembly.
5. The Managing Board may appoint a new member to fill in the vacant position arising unexpectedly within the Managing Board and such member must be approved at the next shareholders’ general assembly. Immediately after the approval by the shareholders’ general assembly, the appointment shall be considered effective on the date of appointment by the Managing Board. The member of the Managing Board, who is appointed to fill in the vacant position unexpectedly arising in the Managing Board shall still have to go through a vote of confidence at the subsequent annual general assembly of shareholders.
6. The appointment of Managing Board members must be announced on at least 2 official economic newspapers known to many people in Vietnam within 5 days after the appointment.
7. Managing Board members must not necessarily be holders of the Company’s shares.
Article 20.- Rights and tasks of the Managing Board
1. The Company’s business activities and affairs must be subject to the implementation management or direction of the Managing Board. The Managing Board is the body vested with full power to exercise all rights in the name of the Company except for competence belonging to the shareholders’ general assembly.
The Managing Board members must not transfer the Company’s shares they have owned while they are in office except where so approved by the Managing Board.
2. The Managing Board shall have the responsibility to supervise the executive general director and other managing officials.
3. The rights and obligations of the Managing Board shall be prescribed by law, the Charter, internal regulations of the Company and resolutions of the shareholders’ general assembly. Concretely, it shall have the following powers and tasks:
a. To decide on the annual plans for production and business development and budgets;
b. To determine the operation objectives and strategic objectives on the basis of the strategic targets adopted by the shareholders’ general assembly;
c. To appoint and relieve from office the company- managing officials at the proposal of the executive general director and decide on their wage levels;
d. To decide on the organizational structure of the Company;
e. To lodge the Company’s complaints about managing officials and select representatives of the Company in the legal procedures against such managing officials;
f. To propose types of share, which can be issued, and the total number of shares issued according to each type;
g. To effect the issuance of bonds, bonds converted into shares and right certificates permitting the owners to buy shares at a pre-set price;
h. To decide on the selling prices of bonds, shares and converted securities;
i. To appoint, relieve from office and dismiss the general director, the executive director or any managing official or representative of the Company if the Managing Board thinks that such is done for the supreme benefit of the Company. However, such dismissal must not run counter to the contractual rights of the dismissed persons, if any.
j. To propose the annual dividend level and determine the temporary dividend level; to organize the dividend payment;
k. To propose the restructure or dissolution of the Company.
4. The following issues must be approved by the Managing Board:
a. The establishment of branches or representative offices of the Company;
b. The establishment of affiliated companies of the Company;
c. Under the provisions in Article 80.2 of the Enterprise Law, the Managing Board shall decide, depending on each period of time, on the performance, modification or cancellation of big contracts of the Company (including contracts on purchase, sale, merger, manipulation of companies and joint ventures) except for cases prescribed in Article 87.1a of the Enterprise Law, which must be ratified by the shareholders’ general assembly;
d. The appointment and dismissal of persons authorized by the Company to be its competent trade representatives and lawyers;
e. Borrowings, mortgages, security, collateral and compensations of the Company;
f. Investments outside the business plans and budget exceeding VND,.... or investments exceeding 10% of the planned value and annual business budget;
g. The purchase or sale of shares of other companies set up in Vietnam or foreign countries;
h. The valuation of assets contributed to the Company not in cash related to the issuance of shares or bonds of the Company, including gold, the land use right, intellectual property right, industrial property right and technological know-how;
i. The Company’s purchase or recovery of not more than 10% of the shares according to each type;
j. Any other business or transaction matters which must be approved by the Board within the scope of its powers and responsibility;
k. The levels of prices for purchase or recovery of shares of the Company.
5. The Managing Board must submit to the shareholders’ general assembly reports on its activities, specifically on its supervision over the executive general director and other managing officials in the fiscal year. If there is no report of the Managing Board, the annual financial report of the Company shall be invalid and not yet approved by the Board.
6. The Managing Board may authorize subordinate employees and managing officials to represent and act on behalf of the Company, even when the matters require the assessment and conclusion, except otherwise provided for by law and the Charter.
7. The Managing Board members (excluding representatives authorized to replace them) may receive remuneration for their work as members of the Managing Board. The total remuneration amount for the Managing Board shall be decided by the shareholders’ general assembly. This amount shall be divided to the Managing Board members under the agreement within the Board or equally if no agreement is reached.
8. The total amount of remuneration paid to the Managing Board members and the amount received by each member must be detailed in the annual reports of the Company.
9. Any member who holds any executive position (including the chairmanship or vice-chairmanship regardless of whether such position is held within the executive scope or not), or members working in various sections of the Board, or members performing other tasks which, according to the Managing Board’s view, lie outside the routine tasks of a member of the Managing Board, may be paid with additional remuneration in forms of a package remuneration for each time, wages, commission, percentage of benefits, or in other forms decided by the Managing Board.
10. The Managing Board members shall be entitled to settle all expenses for travel, accommodation, meals and other reasonable expenses they had to pay when performing their Managing Board membership responsibility, including all expenses arising from their travel for participation in meetings of the Board, various sections of the Managing Board or the shareholders’ general assembly.
Article 21.- Chairman and vice-chairman of the Managing Board
1. The Managing Board shall have to elect among its members a chairman and a vice-chairman. Except where otherwise provided for by the shareholders’ general assembly, the Managing Board chairman shall not concurrently hold the post of the executive general director of the Company. If the shareholders agree that the chairman may be concurrently the executive general director, such decision should be reconfirmed annually at the shareholders’ general assembly.
2. The Managing Board chairman must convene and preside over the shareholders’ general assembly and meetings of the Board, and at the same time have other rights and responsibilities prescribed in this Charter and the Enterprise Law. The vice-chairman shall have the rights and obligations to act in his/her capacity as the chairman if so authorized by the latter but only in cases where the chairman has notified the Managing Board that he/she is absent or must be absent for force majeure reasons or loss of capacity to perform his/her tasks. If the chairman does not appoint the vice-chairman to act so, the other members of the Managing Board shall designate the vice-chairman. In cases where both the chairman and the vice-chairman cannot perform their tasks for any reasons, the Managing Board can appoint another person among its members to perform the tasks of the chairman.
3. The Managing Board chairman must send the annual financial reports, the reports on general situation of the Company, the auditing reports of auditors and the inspection reports of the Managing Board to shareholders at the shareholders’ general assembly;
4. When both the chairman and the vice-chairman of the Managing Board resign or are dismissed for any reasons, the Managing Board must elect persons to replace them within 10 days.
Article 22.- The Managing Board’s substitute members
(This Article is not compulsory)
1. Every member of the Managing Board (other than the person authorized to substitute such member) may designate any other Managing Board member or any other person who is approved by the Managing Board and willing to perform this task, to act as his/her substitute and may dismiss such substitute.
2. The Managing Board’s substitute members shall be entitled to receive notices on every meeting of the Managing Board and of various sections of the Managing Board, where the Managing Board members, who have designated them to act as their substitutes, are absent, and are authorized to perform all functions of the designators as members of the Managing Board in cases where the designators are absent, but not entitled to receive any remuneration from the Company for working in the capacity as the Managing Board’s substitute members. However, the Company is not obliged to send notices on the above-said meetings to the Managing Board’s substitute members who are not present in Vietnam.
3. The substitute members must abandon the Managing Board member capacity if their designators no longer have the Managing Board member capacity. But if a Managing Board member has his/her term of office expired and is re-appointed or considered being re-appointed at the same shareholders’ general assembly where such member gives up his/her post upon the expiry of his/her term of office, the designation of substitute member made by this person immediately before the expiry of his/her term of office shall continue to be effective until such member is re-appointed.
4. The appointment or dismissal of substitute members must be effected in form of written notices sent to the Company by the Managing Board members who have appointed or dismissed the substitutes or in other forms approved by the Managing Board.
5. Apart from the other regulations mentioned in this Charter, a substitute member shall be considered a Managing Board member in all aspects and must bear personal liability for his/her acts and mistakes without being considered the representative to perform the authorization of the Managing Board member who has appointed him/her.
Article 23.- Meetings of the Managing Board
1. Regular meetings: The Managing Board chairman must convene regular meetings of the Managing Board, work out the agendas, time and venues of the meetings at least 7 days before the expected opening dates of such meetings. The chairman may convene meetings at any time he/she deems necessary, but at least once a quarter.
2. Extraordinary meetings: The chairman must convene without any unreasonable delay the Managing Board’s meeting when one of the following subjects makes a written request therefor, stating the purpose of the meeting as well as issues to be discussed:
a. The executive general director or at least five managerial staff members;
b. Two members of the Managing Board;
c. The Managing Board chairman; or
d. The majority of the Control Board members.
3. The Managing Board meeting must be held within two weeks after it is proposed. If the chairman refuses to convene the meeting, the persons who wish to organize such meeting as mentioned in Clause 2 of this Article may convene the meeting of the Managing Board by themselves.
4. At the requests of independent auditors, the Managing Board chairman must convene the Managing Board’s meetings to discuss the auditing reports and the situation of the Company.
5. Meeting venues: The Managing Board’s meetings shall be held at the registered address of the Company or other venues in Vietnam or foreign countries under decisions of the Board’s chairman and the agreement of the Managing Board.
6. Meeting notices and agenda: All meetings must be conducted on the basis of the notices sent to the Managing Board members 5 days before the meetings are organized, provided that members of the Managing Board may refuse the written notices of invitation to the meeting and such refusal may be retroactively effective. The notices on the Board’s meetings must be made in writing in Vietnamese language and contain the meeting agenda, time and venue, which must be sent together with necessary documents on issues to be discussed and voted on at the Board’s meetings as well as voting cards to the Managing Board members who cannot attend the meetings.
7. The minimum number of participating members: A meeting can proceed and adopt resolutions only when it is attended by at least two-thirds of the number of the Managing Board’s members in person or via substitute representatives.
a. Except as prescribed in Item 8b of this Article, every Board member or authorized person present at the Board’s meeting in his/her personal capacity shall be given a voting card.
b. A Board member must not vote on the contracts, transactions or proposals in which such member or any of his relevant persons has interests and such interests may contradict the interests of the Company. A Board member shall not be counted into the necessary number of delegates to be present at a meeting regarding any resolution which such member is not entitled to vote on.
c. According to the provisions in Item 8d of this Article, in a meeting of the Managing Board, if any issues arise, relating to the extent of interests of the Managing Board members or to the voting right of any member and such issues have not been settled with the voluntary abandonment of the voting right of such members of the Board, they shall be transferred to the meeting chairperson and his/her decisions related to all other members of the Board shall be valid as the final ones, except for cases where the nature or scope of the interests of the concerned members of the Board have not yet been announced satisfactorily.
d. Any member of the Board who enjoys benefits from a contract prescribed in Article 87.1 of the Enterprise Law shall be considered as having considerable interests in such contract.
9. Interest declaration: A Board member who, by this or that way, directly or indirectly enjoys benefits from a contract or transaction already signed or planned to be signed with the Company must declare the nature and contents of such benefits at the meeting when the Managing Board considers for the first time the conclusion of this contract or transaction if by that time such member has already known that he/she has or shall have interests in the relevant transaction or contract.
10. Voting by majority: The Managing Board shall adopt resolutions and decisions by way of complying with the approval of the majority of the present members of the Board (over 50%). If the number of votes for and the number of votes against are equal, the chairman’s vote shall be the decisive one.
11. Voting by absentees: The Managing Board members who are absent may vote on the Board’s resolutions by way of voting in writing. These written votes must be delivered to the chairman or the secretary if they cannot be sent to the chairman within one hour before the planned time of the meeting.
12. Meeting via telephone or in other forms: A Managing Board meeting may be organized in form of discussions among the Managing Board members, of whom all or some are in different places, provided that each member participating in the meeting can:
a. Hear every other participating member of the Board speaking at the meeting;
b. If such person wishes, he/she can speak to all other participating members simultaneously.
The discussions among members can be effected directly through telephones or other communications means (whether they have been used at the time of adopting the Charter or at a later time) or through the combination of all those modes. According to this Charter, each Board member participating in such a meeting shall be considered as being "present" at such meeting. A meeting organized according to this provision shall be considered as having occurred at the place where the largest group of Managing Board members stays or if there is no such group, the place where the meeting chairperson is present shall be considered the venue where the meeting is organized.
The resolutions adopted at a via-telephone meeting organized and conducted lawfully shall take effect immediately after the end of the meeting, but must be confirmed with the signature in the minutes of every Managing Board member participating in the meeting.
13. Written resolutions: The written resolutions must be signed by all the following members of the Managing Board:
a. The members who are entitled to vote on the resolutions at the Board’s meetings;
b. The number of members present at the meetings, which must not be lower than the minimum number of members as stipulated for conducting the meeting of the Board.
The resolutions of these types are as effective and valid as the resolutions adopted by the Board’s members at meetings convened and organized regularly. A resolution may also be adopted by way of using its copies, each of which is signed by one member or more.
14. Minutes of meetings: The Managing Board chairman shall have the responsibility to hand the minutes of meetings of the Managing Board to all members and these minutes must be considered the true evidences of the activities carried out at such meetings except when there appear objections to the contents of the minutes within 10 days as from the time they are sent out. The minutes must be made in Vietnamese and signed by all Managing Board members having participated in the meetings.
15. Persons invited to attend meetings as observers: The executive general director and other managing officials as well as experts of a third party may attend the Managing Board meetings at the invitation of the Managing Board but must not vote except when they themselves have the voting right like the Board’s members.
16. Sections of the Managing Board: The Managing Board may authorize its actions and decisions to its attached sections each comprising one or several members of the Board and one or many persons other than the Board members if deeming it appropriate. In the process of exercising the authorized powers, every section must abide by the regulations set by the Managing Board for each period of time. These regulations can regulate or permit the admission of persons other than members of the Managing Board into the above-said sections and permit such persons to vote in the capacity as members of such sections, but (a) the number of additionally admitted members must be smaller than half of the total number of members of such a section, and (b) the resolutions of such sections shall be invalid if the majority of the members present at the meetings to adopt such resolutions are not members of the Managing Board.
17. Legality of actions: Every action taken under decision of the Managing Board or any of its attached section or by any person in the capacity as member of such section shall be considered legally valid even though the process of electing or appointing members of the sections of the Managing Board may witness mistakes.
VIII. THE EXECUTIVE GENERAL DIRECTOR, OTHER MANAGING OFFICIALS AND SECRETARY OF THE COMPANY
Article 24.- Organization of the managerial apparatus
The Company shall have to promulgate a managerial system thereby the managerial apparatus shall be accountable to and placed under the leadership of the Managing Board. The Company has one executive general director (director), a number of executive deputy general directors and a chief accountant, who are appointed by the Managing Board. The executive general director and deputy-general directors may be concurrently members of the Managing Board and shall be appointed or dismissed by the Managing Board under a resolution lawfully adopted.
Article 25.- Managing officials
1. At the request of the executive general director (director) and with the approval of the Managing Board, the Company shall be staffed with a certain number of necessary and appropriate managing officials of various kinds for effecting the structure and practices of managing the Company, proposed by the Managing Board for each period of time. The managing officials must be necessarily diligent in order to attain the objectives set for the operation and organization of the Company.
2. The levels of wage, remuneration, interests and other terms in the labor contract for the executive general director shall be decided by the Managing Board and in the labor contracts for other managing officials shall be decided by the Managing Board after consulting with the executive general director (director).
Article 26.- Appointment, removal from office, tasks and powers of the executive general director (director)
1. Appointment: The Managing Board shall appoint one of its member or another person to be the executive general director (director) and sign a contract prescribing the wage level, remuneration, interests and other terms related to the recruitment. The information on wage level, allowance and interests of the executive general director (director) must be reported to the shareholders’ annual general assembly and stated in the annual report of the Company.
2. Term of office: Pursuant to Article 21, the executive general director (director) may not be the Managing Board chairman. The term of office of the executive general director (director) shall be  years, except otherwise provided for by the Managing Board. The re-appointment thereof can be effected. The appointment may be no longer effective, based on the provisions of the labor contract. The executive general director (director) must not be the person banned by law from holding this position, namely the minors, persons having no act capacity, persons sentenced to imprisonment, persons serving the imprisonment sentence, armed force personnel, State officials and employees and the persons who were sentenced for making the companies they once led go bankrupt.
3. Powers and tasks: The executive general director (director) shall have the following powers and responsibilities:
a. To execute the resolutions of the Managing Board and the shareholders’ general assembly, business plans and investment plans of the Company, which have been adopted by the Managing Board and the shareholders’ general assembly;
b. To decide all matters without having to get the resolutions of the Managing Board, including the representation of the Company in concluding financial or trade contracts, the organization and administration of daily production and business activities according to the best managerial practices;
c. To propose the quantity and types of managing officials to be hired by the Company so that the Managing Board can appoint or relieve them from office when necessary for the implementation of the best managerial practices as well as the structures proposed by the Managing Board and to advise the Managing Board on deciding the levels of wage, remuneration, interest and other terms of the labor contracts of the managing officials;
d. To consult with the Managing Board in order to decide on the number of employees, wage and remuneration levels, interests, the appointment, dismissal and other terms related to their labor contracts;
e. Annually on October 31, the executive general director shall have to submit to the Managing Board for approval the detailed business plan for the next fiscal year on the basis of meeting the requirements of the corresponding budget as well as the 5-year financial plan.
f. To execute the annual business plans approved by the shareholders’ general assembly and the Managing Board;
g. To propose measures to enhance activities and management of the Company;
h. To prepare written long-term, annual and monthly estimates of the Company (hereinafter called the written estimates) in service of its long-term, annual and monthly managerial activities according to the business plans. The annual written estimate (including the accounting balance sheet, the production and business activity report and the planned cash flow) for each fiscal year must be submitted to the Managing Board for adoption and must contain information prescribed in the regulations of the Company.
i. To carry out all other activities under the provisions of this Charter and the regulations of the Company, resolutions of the Managing Board, the labor contract of the executive general director and law.
4. Reporting to the Managing Board and shareholders: The executive general director shall be accountable to the Managing Board and the shareholders’ general assembly for the performance of his/her assigned tasks and the exercise of his/her delegated powers and have to report thereon to these bodies when so requested.
5. Dismissal: The Managing Board may dismiss the executive general director with at least 2/3 of the Board’s members voting therefor (excluding the executive general director’s voting in this case) and appoint a new executive general director to replace him/her. The dismissed executive general director is entitled to protest against such dismissal at the next shareholders’ general assembly.
Article 27.- The Company’s secretary
The Managing Board shall designate a secretary of the Company with his/her term of office and terms to be decided by the Board. The Managing Board may dismiss a secretary of the Company at any time but not in contravention of the provisions of the current labor legislation. Two or more persons may be designated to be co-secretaries of the Company. The Managing Board may also appoint one or several assistants to the Company’s secretaries, depending on each period of time. The roles and tasks of the secretaries of the Company shall include:
a. To organize meetings of the Managing Board, the Control Board and the shareholders’ general assembly on the order of the Managing Board chairman or the Control Board head;
b. To make minutes of meetings;
c. To advise on formalities of the meetings;
d. To supply information for members of the Managing Board and the Control Board.
IX. ENTRUSTED TASKS OF THE MANAGING BOARD MEMBERS, THE EXECUTIVE GENERAL DIRECTOR (DIRECTOR) AND MANAGING OFFICIALS
Article 28.- The caution responsibilities of the Managing Board members, the executive general director and managing officials
The Managing Board members, the executive general director and the managing officials shall be entrusted with the responsibility to perform their tasks, including tasks performed in their capacity as members of sections of the Managing Board in an honest manner and by modes which they deem are for the supreme interests of the Company and with the extent of caution which any careful person needs to have when assuming the equivalent posts and under the similar circumstances.
Article 29.- The responsibilities to be honest and avoid conflicts of interests
1. The Managing Board members, the executive general directors and the managing officials must not use for their personal purposes the business opportunities which may bring about benefits for the Company; and at the same time must not use the information acquired thanks to their positions for their personal interests or for the interests of any other organizations or individuals.
2. The Managing Board members, the executive general director and the managing officials shall be obliged to notify the Managing Board of every interest of possible conflict, which they may enjoy through various economic legal persons, transactions or other individuals. These subjects may use such opportunities only when the Managing Board members who have no relevant interests have decided not to investigate into this matter.
3. The Company must not provide loans, guarantees or credits to the Managing Board members, the executive general director, the managing officials and their families or any legal persons where these persons have the financial interests, except otherwise provided for by the shareholders’ general assembly.
4. According to Article 87 of the Enterprise Law, a contract or transaction between the Company and one or many members of the Managing Board, the executive general director, the managing officials or their relevant persons or any other company, partner, society or organization, of which one or many members of the Managing Board, managing officials or their relevant persons are members or where they have relations in financial interests, shall not be invalidated just only because of the mentioned relations or because such Managing Board members or managing officials are present at or participate in relevant meetings or in the Managing Board or sections which have permitted the performance of the contract or transaction or just because their votes are also counted when voting on such purpose, if:
a. For a contract valued at twenty percent (20%) or under of the total asset value recorded in the accounting books of the Company, the important elements on the contract or transaction as well as relations and interests of the managing officials or Managing Board members have already been reported to the Managing Board or the concerned sections. At the same time, the Managing Board or such sections have permitted the performance of such contract or transaction in an honest manner with the majority of favor votes of the Managing Board members who have no relevant interests; or
b. For a contract valued at over 20% of the total asset value recorded in the accounting books of the Company, the important elements of such contract or transaction as well as the relations and interests of the managing officials or Managing Board members have already been announced to the shareholders who have no relevant interests and are entitled to vote on that matter, and the shareholders who have voted for this contract or transaction in an honest manner;
c. Such contract or transaction is considered by an independent consultancy organization fair and reasonable in all aspects related to the Company’s shareholders at the time such transaction or contract is allowed for implementation, adopted or approved by the Managing Board or a section of the Managing Board, or the shareholders.
5. Not any Managing Board member, nor the executive general director, any managing staff member or their relevant persons are allowed to buy or sell or transact in any other forms shares of the Company or its affiliated companies at any time when they have information that will surely affect the prices of those shares while other shareholders are not aware of such information.
Article 30.- Liability and compensation
1. Liability: The Managing Board members, the executive general director (director) and the managing officials, who breach the obligation to act honestly, fail to fulfill their obligations with carefulness, industriousness and professional capability, shall be held responsible for the damage caused by their acts of violation.
2. Compensation: The Company shall pay compensations to persons who were, are being and will possibly be in danger of becoming an involved party in cases of complaint, lawsuit or prosecution, which were, are being or will possibly be conducted regardless of whether these are civil or administrative cases (other than the lawsuits initiated by the Company or falling under the Company’s right to initiate lawsuits, if such persons were or are being Managing Board members, managing officials, employees or authorized representatives of the Company (or its affiliated companies) or such persons acted or are acting at the request of the Company (or its affiliated companies) in the capacity of Managing Board members, managing officials, employees or authorized representative of another company, partner, joint-venture, trust or legal person. The compensated expenses shall include the arising expenses (including charges for hiring lawyers), jurisdiction expense, fines, payable amounts practically arising or considered reasonable when settling these cases within the framework permitted by law, provided that such persons have acted honestly, cautiously, industriously and with professional capability by modes which they firmly believe are for the interests or do no run counter to the supreme interests of the Company, on the basis of compliance with law and without any detection or certification that such persons have breached their responsibilities. The Company is entitled to buy insurance for such persons in order to avoid the above-mentioned compensation liabilities.
X. THE CONTROL BOARD
Article 31.- Appointment of Control Board
1. A company having 12 shareholders or more must have a Control Board and the Control Board members shall have the powers and responsibilities prescribed in Article 88.2 of the Enterprise Law and this Charter, including the following principal powers and responsibilities:
a. To be consulted with by the Managing Board on the designation of the independent auditing company, the auditing charge level and all matters related to the withdrawal or dismissal of the independent auditing company;
b. To discuss with independent auditors about the nature and scope of auditing before starting the auditing work;
c. To seek independent professional opinions or legal consultancy and ensure the participation of experts outside the company who have appropriate professional experiences and qualifications in the company’s affairs if necessary;
d. To examine the annual, biannual and quarterly financial reports before submitting them to the Managing Board;
e. To discuss difficult and existing issues detected from mid-term or term-end auditing results as well as all matters, which the independent auditors wish to discuss;
f. To examine the letter of management of independent auditors and the feedback of the company;
g. To examine the Company’s report on internal auditing systems before it is approved by the Managing Board; and
h. To examine the internal investigation results and the feedback of the managerial board.
a. Each shareholder holding over 10% of the voting shares for 6 consecutive months or more may nominate one candidate to the Control Board.
b. Shareholders holding under 10% of the voting shares for 6 consecutive months or more may add up their votes together to nominate candidates to the Control Board. If the ownership rate of their voting shares ranges from 10% to under 30%, they are allowed to nominate 1 person; from 30% to under 50%, they are allowed to nominate 2 persons; from 50% to under 70%, they are allowed to nominate 3 persons and over 70%, to nominate 4 persons.
3. The Managing Board members, the executive general director and managing officials shall have to supply all information and documents related to activities of the Company at the request of the Control Board and the Company’s secretary must ensure that copies of the financial information, other information supplied to the Managing Board members and copies of the minutes of the meetings of the Managing Board must be supplied to the Control Board members simultaneously with the time they are supplied to the Managing Board.
4. The Control Board must not have less than 3 members nor more than 5 members, of whom one is specialized in accounting and is not the member or employee of the outside independent auditing company or the employee of the Company itself. The Control Board must designate one member being the shareholder of the Company to be its head. The Control Board head shall have the following rights and responsibilities:
a. To convene meetings of the Control Board and act in the capacity as the Control Board head;
b. To request the Company to supply relevant information for report to the Control Board members; and
c. To make and sign reports of the Control Board after consulting with the Managing Board for submission to the shareholders’ general assembly.
5. The total remuneration amount for the Control Board members shall not exceed VND [ ] each year. The remuneration level may be higher under decisions of the shareholders’ general assembly. The Control Board members shall also be paid with expenses for travel, hotels and reasonable expenses arising when they participate in meetings of the Control Board or related to the business activities of the Company.
6. After consulting with the Managing Board, the Control Board may promulgate regulations on meetings and mode of operation of the Control Board, but it must not meet less than twice a year and the minimum number of members who must be present at a meeting is 2 persons;
7. The Control Board members shall be appointed by the shareholders’ general assembly, have the term of office of 3 years at most and can be re-elected at the next shareholders� general assembly. When electing members of the Control Board, the Company must achieve the target that at least one-third of the number of the Control Board members must be newly elected or re-elected at each annual general assembly of the shareholders.
8. A Control Board member shall no longer have the membership capacity in the following cases:
a. Such member is banned by law from acting as the Control Board member;
b. Such member resigns in writing and the written notice thereon shall be addressed to the Company�s head-office.
c. Such member is affected with the mental disorder and other members of the Control Board have professional evidences showing that such person no longer has act capacity;
d. Such member has been absent for 12 consecutive months, failing to participate in meetings of the Control Board during that period without permission of the Control Board and the Control Board decides that such person�s position shall be left vacant.
XI. RIGHT TO INSPECT BOOKS AND DOSSIERS OF THE COMPANY
Article 32.- Right to inspect books and dossiers
1. Every shareholder or group of shareholders mentioned in Articles 19.3b and 31.2b shall have the right to send, directly or via lawyers or authorized persons, a written request to inspect during the working hours and at the principal business location of the Company the list of shareholders, minutes of the shareholders’ general assembly and to copy, duplicate or extract those dossiers. The inspection request sent via lawyer or authorized representative of a shareholder must be enclosed with the authorization letter of the shareholder whom such person represents or a notarized copy of this authorization paper.
2. The Managing Board members, the Control Board members, the executive general director and the managing officials are entitled to examine books for registration of the Company’s shareholders, the list of shareholders and other books as well as dossiers of the Company for the purposes related to their positions provided that such information must be kept confidential.
3. The Company shall have to keep this Charter, the written amendments and supplements thereto, the business registration certificate, regulations, documents proving ownership right over assets, minutes of the meetings of the shareholders’ general assembly and the Managing Board, the reports of the Control Board, the annual financial reports, accounting books and any other papers prescribed by law at the head-office or another places provided that the shareholders and business registration office are informed of the places where those papers are archived.
4. Every shareholder is entitled to be supplied with a copy of the Company’s charter free of charge. If the Company has its own website, this Charter must be loaded into such website.
XII. EMPLOYEES AND TRADE UNION
Article 33.- Employees and Trade Union
The executive general director shall have to work out plans for adoption by the Managing Board on matters related to the recruitment, labor, work dismissal, wage, social insurance, welfare, commendation and discipline of managing officials and laborers as well as the Company’s relations with trade union organizations recognized according to criteria, practice and the best management policies, the practices and policies prescribed in this Charter, the Company’s regulations and laws.
XIII. DIVISION OF PROFITS
Article 34.- Dividends
1. Under the decision of the shareholders’ general assembly and the provisions of law, dividends shall be announced and paid from the retained profits of the Company, but must not exceed the level proposed by the Managing Board after consulting with the shareholders at the shareholders’ general assembly.
2. Under the provisions of the Enterprise Law, the Managing Board may decide on the mid-term dividend payment if deeming that such payment conforms to the company’s profit-generating capability.
3. Except where rights accompany any share or the articles on issuance of such share otherwise provide for, the dividends (taking into account shares not yet fully paid in the dividend payment period) shall be paid at the levels corresponding to the money amounts already paid for the purchase of such share in the dividend payment period.
4. The Company shall not pay interests on dividend amount or other payable sums related to a share.
5. The Managing Board may propose the shareholders’ general assembly to adopt the full or partial payment of dividends with specific assets (possibly with fully paid shares or bonds issued by other companies) and the Managing Board shall be the body to enforce this resolution.
6. Dividends or other money amounts related to a share, if being paid in cash, must be paid in Vietnam dong and can be paid by checks or payment orders sent via post office to the registered addresses of the benefiting shareholders who shall have to bear all risks if any. Besides, all dividend amounts or other money amounts paid in cash and related to a share may be paid through bank account transfer when the Company has acquired detailed information on the banks of the shareholders, which permits the Company to effect the account transfer directly into the shareholders’ bank accounts. If the Company has already effected the account transfer strictly according to the detailed information on the banks, provided by the shareholders, the Company shall not bear responsibility for any money amounts transferred by the Company to benefiting shareholders but not received by the latter. The payment of dividends for shares listed at the Securities Trading Centers may be effected through securities companies or custody centers.
7. If approved by the shareholders’ general assembly, the Managing Board may decide and notify that common share owners may choose to receive dividends in common shares instead of dividends in cash. The additional shares shall be recorded as those already paid up for the purchase thereof on the basis that the value of additional common shares replacing the dividend amounts in cash must be equivalent to the cash amounts of dividends according to the most authentic calculation.
8. Pursuant to the Enterprise Law, the Managing Board shall adopt its resolutions on a specific date it may prescribes (the book-closing date) as the book-closing date for business activities of the Company, on which the persons who have registered in the capacity as shareholders or owners of other securities are entitled to receive dividends, interests, divided profits, share certificates, information or other documents. This book-closing date may be the same date or any time before the date when such benefits are received. This does not affect the benefits of the two parties in the transaction of transfer of relevant shares or securities.
XIV. BANK ACCOUNTS, RESERVE FUND, FISCAL YEAR AND ACCOUNTING SYSTEM
Article 35.- Bank accounts
1. The Company shall open accounts at a Vietnamese bank or at various foreign banks licensed to operate in Vietnam.
2. With the pre-approval of the competent body, the Company may open bank accounts overseas under the provisions of law, if necessary.
3. The Company shall make all payments and accounting transactions via Vietnamese-currency accounts or foreign-currency accounts at the banks where the Company opens accounts.
Article 36.- Reserve fund for charter capital supplementation
Annually, the Company shall have to deduct a sum from its after-tax profits into the reserve fund for charter capital supplementation as provided for by law. This deducted amount must not exceed 5% of the Company’s after-tax profits and the deduction shall continue until the reserve fund represents 10% of the charter capital of the Company.
Article 37.- Fiscal year
The fiscal year of the Company shall begin on the first day of January of every year and end on the 31st day of December of the same year. The first fiscal year shall commence on the date when the business registration certificate (or business license for conditional production and business lines) is issued and end on the 31st of December after the date of issuance of such business registration certificate (or business license).
Article 38.- Accounting system
1. The accounting system employed by the Company is the Vietnam Accounting System (VAS) or any other system approved by the Finance Ministry.
2. The Company shall establish the accounting books in Vietnamese. The Company shall keep the accounting dossiers according to forms of its business activities. These dossiers must be accurate, updated, systematic and adequate to prove and explain the Company’s transactions.
3. The Company shall use Vietnam dong as currency unit used in accounting.
XV. ANNUAL REPORT, RESPONSIBILITY TO ANNOUNCE INFORMATION, NOTICES TO THE PUBLIC
Article 39.- Annual, biannual and quarterly reports
1. The Company shall have to prepare an annual accounting report according to the provisions of law as well as the provisions of the State Securities Commission, which must be audited according to the provisions in Article 41 of this Charter, and within 90 days after the end of a fiscal year, shall have to submit the annual financial report already approved by the shareholders’ general assembly to the competent tax office, the State Securities Commission, the Securities Trading Center and the business registration agency.
2. The annual accounting report must include a report on the results of production and business activities reflecting in an honest and objective manner the situation on the Company’s losses and profits in the fiscal year, and an accounting balance sheet showing honestly and objectively the situation of activities of the Company until the time the report is made, the cash flow report and the explanation of the financial report. If the Company is a parent company, apart from the annual accounting report, it must also make the general accounting balance sheet on the situation of activities of the Company and its affiliated companies at the end of each fiscal year.
3. The Company shall have to make biannual and quarterly reports according to the regulations of the State Securities Commission and submit them to the State Securities Commission and the Securities Trading Center.
4. A written summary of the contents of the annual financial report already audited must also be sent to all shareholders and published on a local daily and a central economic newspaper for three consecutive issues. If the Company has its own website on the net, the audited financial reports, quarterly and biannual reports of the Company must be loaded into such website.
5. Any interested organization or individual shall be entitled to check or photocopy the audited annual financial reports, biannual and quarterly reports during the working hours of the Company, at its head-office and have to pay a reasonable charge for the photocopies.
Article 40.- Announcing information and notices to the public
The annual financial reports and other support documents must be announced to the public according to the regulations of the State Securities Commission and submitted to the concerned tax offices as well as the business registration agency according to the provisions of the Enterprise Law.
XVI. AUDITING THE COMPANY
Article 41.- Auditing
1. At the annual general assembly of shareholders, an independent auditing company which lawfully operates in Vietnam and is accepted by the State Securities Commission for auditing the listing companies shall be designated to audit the Company for the subsequent fiscal year, based on the terms and conditions agreed upon with the Managing Board. [For the first fiscal year, the Managing Board shall designate an auditing company to conduct activities of auditing the Company after it is granted the business registration certificate].
2. The Company shall have to prepare and send the annual accounting report to the independent auditing company after the end of each fiscal year.
3. The independent auditing company shall examine, certify and report on the annual accounting report showing the revenues and expenditures of the Company, make the auditing report and submit it to the Managing Board within (2) months after the end of each fiscal year. Employees of the independent auditing company, who conduct the auditing for the Company, must be approved by the State Securities Commission.
4. A copy of the auditing report must be sent together with a copy of the annual accounting report of the Company.
5. The auditors who audit the Company shall be allowed to attend all meetings of the shareholders’ general assembly and entitled to receive announcements and other information related to the shareholders’ general assembly, which every shareholder is entitled to receive, and to speak out at the general assembly about matters related to the auditing.
Article 42.- Seal
1. The Managing Board shall adopt an official seal of the Company and the seal shall be carved according to the provisions of law.
2. The Managing Board, the general director, the executive director shall use and manage the seal according to current law provisions.
XVIII. TERMINATION OF OPERATION AND LIQUIDATION
Article 43.- Termination of operation
1. The Company may dissolve or terminate its operation in the following cases:
a. When the operation duration of the Company has expired, even after it was extended;
b. The Company was declared bankrupt by court according to the current law provisions;
c. It dissolves ahead of time as prescribed by the shareholders’ general assembly.
Other cases prescribed by law.
2. The dissolution of the Company ahead of time (including the extended time) shall be decided by the shareholders’ general assembly and such decision must be notified to the competent body for announcement or approval if the approval procedure is compulsory.
Article 44.- Cases of deadlock between Managing Board members and shareholders
Except when otherwise provided for by this Charter, the shareholders who hold more than half of the number of shares being circulated and have the right to elect members of the Managing Board may lodge their written complaints to court to request the dissolution on one or several following grounds:
1. The Managing Board members disagree in managing the affairs of the Company, thus leading to the failure to obtain the prescribed number of votes necessary for the Managing Board to operate.
2. Shareholders disagree, thus resulting in the failure to obtain the prescribed number of votes necessary for conducting the election of Managing Board members.
3. There exists internal disagreement and the shareholders are split up into two or more factions, thus making the dissolution an option more beneficial to the entire shareholders.
Article 45.- Operation extension
1. The Managing Board shall convene the shareholders’ general assembly at least seven (7) months before the end of operation duration so that the shareholders may vote on the extension of the Company’s operation for a period of time at the proposal of the Managing Board.
2. The operation duration shall be extended if the shareholders holding at least 65% of the voting shares and present at the shareholders’ general assembly in person or via their authorized representatives, vote for the extension.
Article 46.- Liquidation
1. At least six (6) months before the end of the duration of the Company’s operation or after the issuance of a decision on the dissolution of the Company, the Managing Board shall have to set up the Liquidation Board comprising (3) members, of whom two shall be appointed by the shareholders’ general assembly and one shall be appointed by the Managing Board from an independent auditing company. The Liquidation Board shall prepare regulations on its operation. The Liquidation Board’s members may be selected from among the employees of the Company or independent specialists. All expenses related to the liquidation shall be prioritized by the Company with the payment thereof made before the payment of other debt amounts of the Company.
2. The Liquidation Board shall have to report to the business registration offices on the date of its founding and the date of commencing its operation. As from that time, the Liquidation Board shall act on behalf of the Company in all affairs related to the liquidation of the Company before court and administrative agencies.
3. The proceeds from the liquidation shall be used for payments in the following order:
a. Liquidation expenses;
b. Wages and insurance premiums for workers and employees;
c. Taxes and payments of tax nature to be paid to the State by the Company;
d. Borrowings (if any);
e. Other debt amounts of the Company;
f. The remainder after effecting the payments from Item (a) thru (e) above shall be distributed to shareholders. Preferential shares shall be paid first with priority.
XIX. SETTLEMENT OF INTERNAL DISPUTES
Article 47.- Settlement of internal disputes
1. Upon the appearance of disputes or complaints related to the operation of the Company or to the shareholders’ rights arising from the Charter or from any right or obligation prescribed by the Enterprise Law, other laws or administrative regulations, between:
(i) A shareholder or shareholders and the Company; or
(ii) A shareholder or shareholders and the Managing Board, the Control Board, the executive general director or senior managing officials,
the involved parties shall endeavor to settle those disputes through negotiations and conciliation. Except for disputes related to the Managing Board or its chairman, the Managing Board chairman shall preside over the settlement of disputes and request each party to present the practical elements related to the disputes within [ ] working days as from the date the disputes arise. If the disputes are related to the Managing Board or its chairman, any party may request [ ] to appoint an independent specialist to act as the arbitrator for the process of settling the disputes.
2. If no conciliation decision is made within  weeks as from the time of starting the conciliation process or if the decision of the conciliation mediator is not accepted by the parties, any party may bring the disputes to the Economic Arbitration or Economic Court.
3. Each party shall have to bear its own expenses related to the negotiation and conciliation procedures. The court’s expenses shall be paid by a party decided by the court.
XX. AMENDMENT OF CHARTER
Article 48.- Supplementation and amendment of the Charter
1. The amendment and supplementation of this Charter must be considered and decided by the shareholders’ general assembly.
2. In cases where the law provisions related to the operation of the Company have not yet been mentioned in this Charter or where the new law provisions are different from the provisions in this Charter, such law provisions shall naturally apply and regulate the operation of the Company.
XXI. EFFECTIVE DATE
Article 49.- Effective date
1. This Charter comprising XXI Chapters with 50 articles is unanimously adopted by the shareholders general assembly to set up the joint-stock company on day.. month.. year at and the effect of its full contents is also approved.
2. This Charter is made in 10 copies with the same value, of which:
2.1. One copy is submitted to the State Notary Public in the locality;
2.2. Five copies are registered at the local administration according to the stipulations of the provincial/municipal People’s Committees.
2.3. Four copies are kept at the Company’s head-office.
3. This is the unique and official Charter of the Company.
4. The copies or extracts of the Company’s Charter must be signed by the Managing Board chairman or at least 1/2 of the total number of the Managing Board members to be valid.
Article 50.- The signatures of the founding shareholders or the Company’s representative at law.-
THE OFFICE OF GOVERNMENT