Quyết định 1122/2001/QD-NHNN

DECISION

ON SHAREHOLDERS, SHARES, SHARE CERTIFICATES AND CHARTER CAPITAL OF STATE AND PEOPLE'S COMMERCIAL SHAREHOLDING BANKS ISSUING REGULATIONS ON SHAREHOLDERS, SHARES, SHARE CERTIFICATES AND CHARTER CAPITAL OF STATE AND PEOPLE'S COMMERCIAL SHAREHOLDING BANKS

THE GOVERNOR OF THE STATE BANK

Pursuant to the Law on the State Bank 01-1997-QH10 and the Law on Credit Institutions 02-1997-QH10 dated 12 December 1997;
Pursuant to the Law on Enterprises 13-1999-QH10 dated 12 June 1999;
Pursuant to Decree 15-CP of the Government dated 2 March 1993 on duties, powers and responsibilities for State administration of ministries and ministerial equivalent bodies;
Pursuant to Decree 49/2000/ND-CP of the Government dated 12 September 2000 on organization and operation of commercial banks;

On the proposal of the Director of the Department for Banks and Non-Banking Credit Institutions;

DECIDES:

Article 1

To issue with this Decision the Regulations on Shareholders, Shares, Share Certificates and Charter Capital of State and People's Commercial Shareholding Banks.

Article 2

This Decision shall be of full force and effect after fifteen (15) days from the date of its signing and shall replace the provisions on commercial shareholding banks in the Regulations on Shareholders, Shares, Share Certificates and Charter Capital of Shareholding Credit Institutions issued with Decision 275-QD/NH5 of the Governor of the State Bank dated 7 November 1994.

Article 3

The Head of the State Bank Office, the Director of the Department for Banks and Non-Banking Credit Institutions, the Head of the State Bank Inspectorate, heads of relevant units of the Central State Bank, directors of State Bank branches of provinces and cities, and chairmen and members of boards of management and of boards of controllers and general directors (directors) of State and people's commercial shareholding banks shall be responsible for implementation of this Decision.

REGULATIONS

ON SHAREHOLDERS, SHARES, SHARE CERTIFICATES AND CHARTER CAPITAL OF STATE AND PEOPLE'S COMMERCIAL SHAREHOLDING BANKS
(Issued with Decision 1122/2001/QD-NHNN of the State Bank of Vietnam dated 4 September 2001 and amended by Decision 797/2002/QD-NHNN of the State Bank of Vietnam dated 29 July 2002)

Chapter I

GENERAL PROVISIONS

Article 1

These Regulations shall apply to State commercial shareholding banks and people's commercial shareholding banks (hereinafter referred to as commercial shareholding banks) which are licensed to operate in Vietnam under the provisions of the Law on Credit Institutions.

Article 2

In these Regulations the following terms shall be construed as follows:

1. Legal capital means the minimum level of capital stipulated by the law on establishment of a commercial shareholding bank.

2. Charter capital means the amount of paid up capital from all shareholders and recorded in the charter of the commercial shareholding bank.

3. Shares means the equal parts into which charter capital has been divided.

4. Share certificates means certificates issued by a commercial shareholding bank confirming ownership of one or a number of shares in that commercial shareholding bank. Shares may or may not record a name, in accordance with the provisions in the charter of the commercial shareholding bank.

5. Shareholder means an organization or individual being the owner of one or a number of shares in a commercial shareholding bank.

6. Founding shareholder means a person who participates in approving the initial charter of the commercial shareholding bank.

7. Major shareholder means an organization or individual owning over ten (10) per cent of the charter capital or holding over ten (10) per cent of the share capital with voting rights in the commercial shareholding bank.

8. Dividend means the amount of money deducted annually from the profits of a commercial shareholding bank to be paid on each share.

Article 3

A commercial shareholding bank may only list its shares at a Securities Trading Centre upon written approval from the State Bank. The State Bank shall provide specific regulations on granting approval for commercial shareholding banks to list shares, to take part in trading, and to issue new shares at a Securities Trading Centre. Any commercial shareholding bank participating in the securities market must comply with the law on securities and the securities market.

Article 4

A commercial shareholding bank must have at least thirty five (35) shareholders (or twenty (25) shareholders in the case of a commercial shareholding bank operating in the rural sector), including one shareholder being a State owned enterprise or a shareholding company with capital contribution by a State owned enterprise of over thirty (30) per cent of charter capital.

Article 5

Foreign organizations or individuals may only purchase shares in commercial shareholding banks with permission from the State Bank.

Chapter II

SPECIFIC PROVISIONS

Section I. SHAREHOLDERS, SHARES, SHARE CERTIFICATES AND DIVIDENDS

Part I

SHAREHOLDERS AND SHARES

Article 6

Shareholders of a commercial shareholding bank shall include State owned enterprises, State credit institutions, individuals and other organizations contributing capital.

Article 7

1. A commercial shareholding bank must have ordinary shares, and the persons owning them shall be called ordinary shareholders.

2. A commercial shareholding bank may have preferential voting shares, and the persons owning them shall be called preferential voting shareholders.

2.1. Preferential voting shares means shares with a greater number of votes attached to them than ordinary shares. The charter of a commercial shareholding bank shall contain regulations on the number of votes for one preferential voting share.

2.2. Only founding shareholders shall have the right to hold preferential voting shares. Preferential voting by founding shareholders shall only be effective for three years from the date on which the commercial shareholding bank is issued with its business registration certificate. After that time-limit, preferential voting shares of founding shareholders shall convert into ordinary shares.

2.3. Shareholders owning preferential voting shares may not assign them to any other person.

3. Ordinary shares may not be converted into preferential voting shares. Preferential voting shares may be converted into ordinary shares pursuant to a decision of the general meeting of shareholders.

Article 8. Rights of shareholders

1. Ordinary shareholders shall have the following rights:

(a) To participate in, and to vote on all issues within the authority of, the general meeting of shareholders; to stand, or to nominate another person, for election as a member of the board of management or board of controllers (if there is the minimum number of shares as prescribed by the charter of the commercial shareholding bank). Each ordinary share shall have one vote;

(b) To receive dividends in the sum decided by the general meeting of shareholders;

(c) To be given priority to purchase new shares when the commercial shareholding bank increases its charter capital;

(d) To assign shares in accordance with the charter of the commercial shareholding bank and the regulations of the State Bank;

(dd) To receive information on the operational status of the bank in accordance with the provisions in the charter of the commercial shareholding bank;

(e) To provide a power of attorney for any one occasion for another person to participate directly in a general meeting of shareholders in accordance with the charter of the commercial shareholding bank; the proxy may not in turn authorize another person and may not stand for election in his or her personal capacity;

(g) Upon dissolution or bankruptcy of the commercial shareholding bank, to receive that part of the residual assets corresponding to the number of paid-up shares in the commercial shareholding bank in accordance with the law on dissolution and bankruptcy;

(h) Other rights in accordance with law and the charter of the commercial shareholding bank.

2. Major shareholders which have held their shares for at least six consecutive months shall have the rights:

(a) To nominate a person to the board of management or board of controllers;

(b) To view and to receive a copy or an extract of the list of shareholders with the right to attend a general meeting of shareholders;

(c) To request that a general meeting of shareholders be convened;

(d) Other rights in accordance with the provisions of the charter of the commercial shareholding bank and in accordance with law.

3. Preferential voting shareholders shall, in addition to the same rights as ordinary shareholders, be entitled to vote on issues within the authority of the general meeting of shareholders with the number of votes stipulated by the charter of the commercial shareholding bank.

Article 9. Obligations of shareholders

1. To purchase all of the shares that they have undertaken to purchase and to be responsible before the law for the legality of the funds with which the shares are purchased;

2. To comply with the charter and with the internal regulations of the commercial shareholding bank;

3. To comply with decisions of the general meeting of shareholders and of the board of management;

4. To be responsible for debts and other property obligations of the commercial shareholding bank to the extent of the amount of their paid-up capital;

5. Not to withdraw share capital in any form whatsoever;

6. To fulfil other obligations in accordance with the provisions of the charter of the commercial shareholding bank and in accordance with law.

Article 10. Founding shareholders and rights of founding shareholders

1. For the first three years from the date on which a commercial shareholding bank is issued with a business registration certificate, the founding shareholders must together hold at least twenty (20) per cent of the ordinary shares offered for sale; and the ordinary shares of the founding shareholders may be assigned to non-shareholders if the general meeting of shareholders consents. Founding shareholders which propose to assign their shares may not vote on that issue.

2. Upon expiry of three years, the restrictions on the ordinary shares of founding shareholders as stipulated in clause 1 of this article shall be lifted.

Article 11. Shareholders register

1. A commercial shareholding bank must open and maintain a shareholders register from the date of issuance of its business registration certificate. The shareholders register may be a written document or it may be in electronic form, and it must contain the following principal items:

(a) Name and head office of commercial shareholding bank;

(b) Total number of shares permitted to be offered for sale, classes of shares permitted to be offered for sale, and numbers of each class of shares permitted to be offered for sale;

(c) Fluctuations in total number of shares sold in each class and value of paid-up share capital;

(d) Names and addresses of shareholders, numbers of each class of shares and total overall number of shares of each shareholder, and dates on which the shares were registered.

2. The shareholders register must be retained at the head office of the commercial shareholding bank. Every six months, the commercial shareholding bank must report in writing to the State Bank branch in the locality where it has its head office if there is a change in any one of the items listed in clause 1 of this article.

Part II

PURCHASE, OFFERING FOR SALE, AND ASSIGNMENT OF SHARES

Article 12

1. Shares of commercial shareholding banks may be purchased in Vietnamese dong, in freely convertible foreign currency, with gold, with the value of land use rights or with other assets as stipulated in the charter of the commercial shareholding bank and in accordance with law.

2. In the case of capital contribution by the value of land use rights or other assets which are not Vietnamese dong, freely convertible foreign currency or gold, they must be assets which are necessary to service the activities of the commercial shareholding bank and must be approved by the general meeting. The valuation and assignment of land use rights and of the ownership of assets shall be implemented in accordance with articles 22 and 23 of the Law on Enterprises and other relevant laws.

Article 13

1. The board of management shall make a decision in accordance with law on the price at which shares shall be offered for sale. If that price is higher than the par value of the shares, there must be a resolution of the general meeting of shareholders, and the difference shall be accounted for in the reserve fund for supplementing charter capital.³

2. The correct and complete information required by article 11(d) of this Decision shall be recorded in the shareholders register after shares have been sold or transferred, and as from that date the share purchaser or the share transferee shall become a shareholder of the commercial shareholding bank.

3. The procedures and order for offering shares for sale at a Securities Trading Centre shall be implemented in accordance with law.

Article 14

1. Shares of members of the board of management and of the board of controllers; and shares of major shareholders, of founding shareholders and of foreigners in a commercial shareholding bank shall be issued in the form of a named share certificate. The State Bank must approve any transfer of named share certificates the total of which exceeds twenty (20) per cent of the charter capital (as from the most recent transfer registered at the State Bank).

2. The State Bank must provide written approval to any change in the share ratio of major shareholders of a commercial shareholding bank.

3. During their period in office and while they are subject to any proceedings for loss for which they are personally liable pursuant to a resolution of the general meeting of shareholders, members of the board of management and of the board of controllers and the general director (director) may not transfer their shares, except in the following cases:

(a) Transfer of the number of shares above the minimum level required to hold office in accordance with the provisions in the charter of the commercial shareholding bank;

(b) A shareholder being a legal entity merges, consolidates, divides, is dissolved or declared bankrupt in accordance with law or a shareholder being an individual dies or loses civil capacity or must compulsorily transfer shares in accordance with a decision of a legal body, upon finalization of the financial obligations of the shareholder at the bank.

Article 15

1. The file for a change in the shares of a shareholder as stipulated in clauses 1 and 2 of article 14 shall comprise:

(a) Submission from the chairman of the board of management;

(b) Application from the shareholder to transfer shares (the application of a legal entity must be signed and sealed by its legal representative);

(c) Application from the shareholder to purchase shares, including an undertaking as to the legality of the funds with which the shares are to be purchased, its acceptance of the current financial situation and charter of the commercial shareholding bank, and compliance with all regulations relating to share purchases (the application of a legal entity must be signed and sealed by its legal representative);

(d) File of a shareholder transferring shares less than twenty (20) per cent of charter capital;

(dd) Other relevant legal documents.

2. A commercial shareholding bank must prepare a file (two main sets) in accordance with the provisions in clause 1 of this article and submit it to the State Bank branch in the locality where its head office is located. Within a time-limit of fifteen (15) days from the date of receipt of a complete file, the State Bank branch must check the share transfer prior to any change in order to ensure that the share capital of shareholders remains lawful and must provide a written response to the commercial shareholding bank approving the share transfer, or not approving (if it considers the file does not comply with the regulations and the change of shareholding may destabilize the operations of the commercial shareholding bank). In the case of non-approval, the response must specify the reasons.

3. After the transfer of shares of a shareholder, a commercial shareholding bank must report by sending a copy of the list of shareholders to the State Bank (the State Bank branch in the locality where its head office is located and also to the Banking Department of the State Bank).

Part III

RESTRICTIONS ON SHARE OWNERSHIP

Article 16

1. Any State owned enterprise and any companies in which that State owned enterprise holds fifty (50) per cent or more of the charter capital may not together own a number of shares exceeding forty (40) per cent of the charter capital of any one commercial shareholding bank.

2. With respect to shareholders other than State owned enterprises: any organization and its representative, or any company and its subsidiaries which are legal entities, may own shares not exceeding thirty (30) per cent of the charter capital of any one commercial shareholding bank.

3. Shareholders being individuals may own shares not exceeding fifteen (15) per cent of the charter capital of any one commercial shareholding bank.

4. Shareholders being individuals and related persons within their family (parents, spouses, children or siblings) may own shares not exceeding thirty (30) per cent of the charter capital of any one commercial shareholding bank.

5. If one member of a family is already the representative for the capital share of a shareholder being an individual who has paid-up capital in a commercial shareholding bank, the remaining family members may only own less than twenty (20) per cent of the charter capital of the commercial shareholding bank.

Part IV

SHARE CERTIFICATES AND DIVIDENDS

Article 17

Share certificates of a commercial shareholding bank may not be used for a financial pledge to the commercial shareholding bank which issued such certificates.

Article 18

1. Share certificates of a commercial shareholding bank must contain the following principal items:

(a) Name and main headquarters of the commercial shareholding bank;

(b) Number and date of issuance of licence for establishment and operation;

(c) Number of shares and class of shares;

(d) Par value of each share and total value of number of shares stated on the share certificate;

(e) Name of the shareholder (with named share certificates);

(f) Summary of the procedures for transferring the share certificate;

(g) Specimen signature of the legal representative, and seal of the commercial shareholding bank;

(h) Registered number in the shareholders register and date of issuance of the share certificate;

(i) In addition to the above matters, share certificates for preferential voting shares must also record the number of votes in accordance with the provisions in the charter of the commercial shareholding bank.

2. Within a time-limit of thirty (30) days from the date of commencement of operation (in the case of a newly-established commercial shareholding bank), or from the date on which the commercial shareholding bank registers with the competent State body its new charter capital level (in the case of a commercial shareholding bank already operating), the commercial shareholding bank must issue new share certificates to shareholders.

Article 19

A commercial shareholding bank may administer share certificates by retaining them on behalf of shareholders, or it may issue share certificates at the request of shareholders. If a named share certificate is lost, torn, burnt, or destroyed in any other way, the shareholder must immediately notify the commercial shareholding bank and request that it re-issue another share certificate and the shareholder must pay a fee as regulated by the commercial shareholding bank.

Article 20 Payment of dividends

1. A commercial shareholding bank may only pay shareholders a dividend when it has made a business profit, and when it has paid all taxes and other financial obligations in accordance with law.

2. At least thirty (30) days prior to each occasion on which a dividend is paid, the board of management must prepare a list of shareholders to receive a dividend, confirming the amount of dividend to be paid on each class of share and the period and form of payment. A notice of payment of dividend must be publicly sent to each shareholder at least fifteen (15) days prior to the date on which the dividend is to be paid. Such notice must specify the name of the commercial shareholding bank, the name and address of the shareholder, the numbers of each class of share held by the shareholder, the amount of dividend to be paid on each class of share, the total dividend to be received by the shareholder, and the date and method of payment.

3. With respect to a shareholder which transfers its shares in the period between the completion of the list of shareholders to receive a dividend and the date of payment, the transferor shall be entitled to receive the dividend from the commercial shareholding bank.

Section II. CHARTER CAPITAL

Article 21

1. Charter capital shall be accounted for in Vietnamese dong (VND).

2. A commercial shareholding bank must ensure that the actual amount of charter capital does not fall below the legal capital required by law.

Article 22⁴

1. Charter capital of a commercial shareholding bank may be increased by issuing new share certificates, by being supplemented from the reserve fund for supplementing charter capital, or by re- valuing fixed assets, and from other funds in accordance with law. Prior to implementation of such methods, both the general meeting of shareholders and the State Bank must provide written approval.

2. In the case where the charter capital of a commercial shareholding bank is decreased, the amendment shall be dealt with as follows:

2.1. Circumstances in which it is compulsory to decrease charter capital:

(a) Losses in three consecutive years; the commercial shareholding bank must make a decision to decrease its charter capital by the amount of losses accumulated in the third year;

(b) Items of investment capital are determined or decided by the competent State body to be operational losses after deduction of the risks reserve;

(c) Any amount of capital contribution was sourced illegally, or a shareholder made its capital contribution other than in the capacity of a shareholder, as concluded by the Inspectorate;

(d) A re-valuation of fixed assets in accordance with law results in the diminution of their value.

2.2. In the circumstances stipulated in clause 2.1 above, the commercial shareholding bank must convene an extraordinary general meeting of shareholders, or place an item on the agenda of a regular general meeting of shareholders, for a decision on methods to deal with the decrease, after it has applied other financial methods (using the reserve fund for supplementing charter capital to make up the deficit; contributing additional capital to resolve the deficit, and so forth) without successfully resolving the deficit. Any decrease in charter capital shall be associated with either or both of the forms of a reduction in the par value of shares and a reduction in the number of shares.

2.3. If, after the reduction, the charter capital remains lower than the legal capital and the commercial shareholding bank has not taken measures to overcome this within six months, the State Bank branch shall resolve the issue in accordance with current regulations in the same manner as for a credit institution with legal capital below the stipulated level.

Article 23

A commercial shareholding bank may not use its charter capital or funds to purchase shares in, or to subscribe capital to, that same bank.

Article 24

Charter capital may be used for the following objectives:

1. To purchase or invest in its own fixed assets, not exceeding fifty (50) per cent of the charter capital and reserve fund for supplementing charter capital;

2. To purchase shares and to subscribe capital in accordance with State Bank regulations;

3. To establish a subsidiary company in accordance with law;

4. To make loans;

5. To conduct business in other services in accordance with law.

Article 25

1. The State Bank must provide written approval for a commercial shareholding bank to change its charter capital.

2.⁵ An application file for approval for the change in charter capital shall comprise:

(a) Submission from the chairman of the board of management (specifying the reasons and necessity for the change);

(b) Minutes of the general meeting of shareholders on the change in charter capital;

(c) Plan of change in charter capital approved by the general meeting of shareholders, specifying at least the following items:

(i) Requirements for a decision on change in charter capital (specifying the utilization of capital for each relevant requirement).

(ii) Evaluation of proposed business efficiency after change in charter capital; specifying proposed targets after change in charter capital including growth rates (in the form of absolute figures and density proportion) of total current assets, credit, mobilization of deposits from clients, and deposits and loans from other credit institutions; prudential limits in the operation of the bank; return over equity rate (ROE) and return over assets rate (ROA).

(iii) Evaluation of the capacity of the board of management and the management to manage, administer and control, and the internal control system in respect of the amount of capital and scale of operation after change in charter capital.

(iv) The plan on change in charter capital in a financial year must specify at least the following items:

- Total forecast changed charter capital;

- Proposed issue tranches [of shares] in the year;

- Plan of each issue tranche: subscribers entitled to purchase [shares], prices of the offer made to each category of subscribers (in a case where such prices have not yet been determined, state "not definable"; however, the price of the offer must be consistent with the Law on Enterprises); date of sale and other conditions (if any) relating to interests and obligations of subscribers in each category;

- Forecast change in the structure of ownership of shareholders holding 5% or more of charter capital of the commercial shareholding bank after each change in charter capital and reasons for such change;

(d) List of shareholders currently holding 5% or more of charter capital of the commercial shareholding bank and proposed change of such shareholders after each change in charter capital, comprising names and addresses of shareholders, numbers of shares of each class and total number of shares, proportion of [his/her shares to] total charter capital of the bank.

(dd) Summary report on structure of the board of management or the board of controllers (if any) to be changed upon change in charter capital, in which qualifications and experience in banking operations of each member must be summarized.

(e) Files of shareholders participating in purchase of shares for increase in charter capital:

(i) In the case of shareholders being organizations other than credit institutions which currently hold or are expected to hold 5% or more of charter capital and shareholders being credit institutions:

- Application for purchase of shares with the signature and seal of legal representative (Appendix 1);

- Financial statements for the year immediately before the year of purchase of shares.

In the case of foreign organizations, financial statements must comply with Circular 07/2007/TT-NHNN of the State Bank dated 29 November 2007 providing guidelines for implementation of Decree 69/2007/ND-CP of the Government dated 20 April 2007 on foreign investors purchasing shares of Vietnamese commercial banks.

In the case of Vietnamese organizations, financial statements must satisfy the following requirements:

+ The prevailing regulations on accounting of the State must be complied with;

+ Financial statements shall comprise a balance sheet, a profit and loss statement, a cash flow statement and notes to the financial statements;

+ Where a shareholder is a parent company, such shareholder must submit consolidated financial statements in accordance with the laws on accounting, accompanied by financial statements of the parent company;

+ Annual financial statements must be audited by an independent auditor included in the list of auditing organizations qualified for carrying out corporate audits as published by the Ministry of Finance. The opinion of the auditor about the financial statements must show acceptance of the whole; where the opinion of the auditor is acceptance with an exception, such exception must not be substantial and an explanatory statement of the grounds of such exception shall be required;

+ Where a file is submitted before 1 March each year, the annual financial statements for the last year in the initial file may be financial statements which have not yet been audited but the audited financial statements for the year immediately before such year shall be required, and audited financial statements for the year immediately before the year of purchase of shares shall be added immediately when they are available;

+ Where the period from the last date of the most recent accounting period of financial statements to the date of submission of the valid application file for approval for the change in charter capital to the State Bank is more than ninety (90) days, the shareholder must prepare additional financial statements up to the most recent month or quarter;

+ Where there are any contingent changes after the end of the period covered by the most recent financial statements, the shareholder must prepare additional financial statements up to the most recent month or quarter;

+ Financial statements which are photocopies must be certified by the authorized State body or the auditor (where the financial statements were audited) or must be certified by the shareholders as true copies (in the case of unaudited financial statements).

Where a shareholder does not have any financial statements because it has been newly established and operated in the period from 31 December of the year before the year of change in charter capital to 1 March of the year of change, the shareholder must submit the following documents in place of the financial statements specified in this provision: a written report on financial capacity of the owner holding the right to control such organization supported by relevant documents; and a written undertaking to assume sole legal responsibility for the fact that the shareholder has sufficient financial capacity to make capital contribution to the bank.

(ii) In the case of an individual who currently or is expected to hold 5% or more of charter capital:

- Application from the shareholder to purchase shares (Appendix 2);

- Declaration of income and assets of the individual valued at one hundred million Dong or more, on the form stipulated in Appendix 3.

(iii) In the case of shareholders being members of the board of management or board of controllers or managerial personnel of the bank:

Application from the shareholder being a member of the board of management or board of controllers or a managerial person of the bank, to purchase shares (Appendix 2). Where the representative of a shareholder being an organization acts as a member of the board of management, board of controllers or as a managerial person of the bank, he or she shall only be required to prepare an application to purchase shares in accordance with Appendix 1.

(g) Other relevant documents in accordance with law.

3.⁶ A commercial shareholding bank shall prepare a file in accordance with clause 2 of this article (two main sets) and submit it to the State Bank branch of the province or city where its head office is located. Such State Bank branch shall be responsible, within ten (10) days from the date of receipt of a complete file from the commercial shareholding bank:

(a) To verify the file in accordance with these Regulations.

(b) To evaluate the plan of change in charter capital in terms of efficiency of operation of the bank after change in charter capital, the capacity of the commercial shareholding bank for management, administration and control in respect of the amount of capital and scale of operation after change in charter capital, and the financial capacity of shareholders which currently hold or are forecast to hold 5% or more of charter capital and of any shareholder being a credit institution.

(c) To check the financial capacity of shareholders purchasing shares in terms of the following items:

(i) With respect to shareholders being an organization:

- In the case of credit institutions: After purchase of shares of the commercial shareholding bank, the credit institution must comply with the prevailing regulations of the State Bank on prudential limits in operation of the credit institution; classification of debts, contributions made to and utilization of the reserve for credit risks.

- In the case of organizations other than credit institutions currently holding or forecast to hold 5% or more of charter capital of the commercial shareholding bank, they must ensure that their equity after deducting long-term investments funded by equity [and] current assets after deducting current liabilities must at least be equal to the amount of capital for purchase of shares of the commercial shareholding bank (methods of calculation are specified in Appendix 4).

The above norms shall be determined on the basis of financial statements of the organization referred to in paragraph e(i) of clause 2 of this article.

(ii) With respect to a shareholder being an individual who currently holds or is forecast to hold 5% or more of the charter capital of the commercial shareholding bank, he or she must prove his capacity to make capital contribution to the bank by way of declaring personal income and assets referred to in paragraph e(ii) of clause 2 of this article.

(d) Submit its specific proposal to the Governor of the State Bank for consideration, specifying its position on whether or not it agrees with the change in charter capital of the commercial shareholding bank. After obtaining the opinion of the State Bank, the provincial State Bank branch shall issue written approval for the commercial shareholding bank to change its charter capital. Where the change in charter capital of the commercial shareholding bank has not yet been approved or is refused, the provincial State Bank branch shall notify the entity in writing and specify its reasons.

4. A letter of approval to a change in charter capital shall be valid within that financial year.

5. After it has changed its charter capital in accordance with the letter of approval from the State Bank branch, a commercial shareholding bank must register the new charter capital with the competent State body and must also make an announcement in central and local newspapers in accordance with law. Within a time-limit of five days at the latest from the date of registration with the competent State body, the commercial shareholding bank must forward a notarized copy of the letter of approval together with a list of the shareholders who contributed the new capital and a list of all shareholders after the change in charter capital to the State Bank of Vietnam (Department of Banks and Non-Banking Credit Institutions at the place where it has its head office).⁷

6. The board of management of a commercial shareholding bank shall be responsible before the law for evaluating files and for the procedures and conditions to approve shareholders subscribing capital in accordance with the requirements of this Decision.

Section III. GENERAL MEETING OF SHAREHOLDERS

Article 26

The general meeting of shareholders shall include all shareholders with the right to vote and shall be the highest decision-making authority of a commercial shareholding bank.

Article 27. Duties and powers of general meeting of shareholders

1. To amend or supplement the charter of the commercial shareholding bank;

2. To debate and approve reports of the board of management on operational status, business results, financial finalization, plans for profits distribution, plans for payment of share dividends, and plans for payments into and use of funds as proposed by the board of management; the orientation and tasks of the new financial year;

3. To debate and approve reports of the board of controllers;

4. To establish subsidiary companies;

5. To divide, demerge, merge, consolidate, acquire or dissolve the bank and subsidiary companies of the commercial shareholding bank;

6. To decide on the organizational structure and the management and executive apparatus of the bank; the regulations on staff and staffing and on funds and salaries for members of the board of management and of the board of controllers;

7. To decide on plans for external operations;

8. To decide on plans for construction of physical facilities and technical equipment;

9. To approve plans for capital contribution to and purchase of shares of other enterprises and credit institutions;

10. To approve transfers of ordinary shares by founding shareholders in the first three years in accordance with the provisions in article 10 of this Decision;

11. To make decisions on the changes stipulated in article 31.1 of the Law on Credit Institutions, except for changes of location of transaction offices, branches and representative offices, transfers of named shares exceeding the ratio stipulated by the State Bank, and changes of the general director (director) of the commercial shareholding bank;

12. To decide on solutions to overcome large financial fluctuations in the commercial shareholding bank;

13. To elect, remove or dismiss members of the board of management or of the board of controllers at the end of their period of office or to elect additional or replacement members;

14. To consider and decide on forms of penalty for breaches by any members of the board of management or of the board of controllers which cause loss to the shareholders and the commercial shareholding bank;

15. Other rights and duties stipulated in the charter of the commercial shareholding bank.

Article 28. Authority to convene general meeting of shareholders

1. A general meeting of shareholders shall be held at least once every year.

2. A general meeting of shareholders shall be convened pursuant to:

(a) Decision of the board of management;

(b) A request of a shareholder or a group of shareholders holding over ten (10) per cent of the number of ordinary shares for a continuous period of at least six months, or a lesser percentage as stipulated in the charter of the commercial shareholding bank;8

(c) At the request of the board of controllers, where the board of management is in serious breach of the obligations of managers in accordance with article 86 of the Law on Enterprises or the board of management issues a decision beyond its delegated authority;

(d) Other provisions in the charter of the commercial shareholding bank;

(e) At the request of the director of the State Bank branch in the locality where the head office of the commercial shareholding bank is located.

3. The board of management must convene a general meeting of shareholders within thirty (30) days from the date of receipt of a request specified in clause 2 of this article. If the board of management fails to convene a meeting, then the board of controllers must take its place and convene a general meeting of shareholders in accordance with law. If the board of controllers fails to convene a meeting, then the shareholders which made the request as specified in clause 2 of this article shall have the right to take the place of both the board of management and the board of controllers and convene a general meeting of shareholders in accordance with law.

A commercial shareholding bank shall include the costs of convening and holding a general meeting of shareholders in its expenses of banking activities.

Article 29 List of shareholders with right to attend general meeting of shareholders

1. The list of shareholders with the right to attend a general meeting of shareholders shall be prepared on the basis of the shareholders register and shall be prepared when there is a decision to convene a meeting and must be completed at least ten (10) days prior to the opening date of the general meeting of shareholders.

2. The list of shareholders with the right to attend a general meeting of shareholders shall include full names and permanent addresses of individuals and names and head offices of organizations, and the numbers of shareholders of each class of share.

3. All shareholders shall have the right to be provided with the information about themselves recorded in the list of shareholders with the right to attend a general meeting of shareholders.

4. Shareholders shall have the right to request the person convening the general meeting of shareholders to amend any incorrect information or to add any necessary information about themselves in the list of shareholders with the right to attend the general meeting of shareholders.

Article 30 Agenda and contents of general meeting of shareholders

1. The person convening the general meeting of shareholders must prepare an agenda and contents.

2. Major shareholders shall have the right to recommend issues to be put on the agenda for the general meeting of shareholders. A written recommendation must specify the name of the shareholder, the number of each class of share held, and the issues which it is recommended be put on the agenda; and the recommendation must be submitted to the bank at least three days prior to the opening date of the general meeting of shareholders.