Nội dung toàn văn Circular 116/2020/TT-BTC guidelines for implementation of administration o public companies
MINISTRY OF FINANCE | SOCIALIST REPUBLIC OF VIETNAM |
No. 116/2020/TT-BTC | Hanoi, December 31, 2020 |
CIRCULAR
GUIDELINES FOR IMPLEMENTATION OF SOME ARTICLES ON ADMINISTRATION O PUBLIC COMPANIES IN THE GOVERNMENT'S DECREE NO. 155/2020/ND-CP DATED DECEMBER 31, 2020 ELABORATING SOME ARTICLES OF THE LAW ON SECURITIES
Pursuant to the Law on Securities dated November 26, 2019;
Pursuant to the Law on Enterprises dated June 17, 2020;
Pursuant to the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
Pursuant to the Government's Decree No. 215/2013/ND-CP dated December 23, 2013 defining the functions, tasks, entitlements and organizational structure of the Ministry of Finance;
At the request of the President of State Securities Commission (SSC);
The Minister of Finance promulgates a Circular providing guidelines for implementation of some Articles on administration o public companies in the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities.
Article 1. Scope
This Circular provides guidelines for implementation of some Articles on administration o public companies in the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities (hereinafter referred to as Decree No. 155/2020/ND-CP), including the model charter, model internal regulations on company administration, model regulations on operation of the Board of Directors, model regulations on operation of the Board of Controllers, and model regulations on operation of the Audit Committee of public companies.
Article 2. Regulated entities
1. Public companies.
2. Shareholders of public companies, organizations and individuals that are related persons of these shareholders.
3. Members of the Board of Directors, members of the Board of Controllers, executives of public companies, and their related persons.
4. Other organizations and individuals that are related to public companies.
Article 3. Company’s Charter
Public companies should refer to the model charter in Appendix I hereof to formulate their own charters in accordance with the Law on Enterprises, the Law on Securities, the Government’s Decree No. 155/2020/ND-CP and relevant laws.
Article 4. Internal regulations on company administration
Public companies should refer to the model internal regulations on company administration in Appendix II hereof to formulate their own regulations in accordance with the Law on Enterprises, the Law on Securities, the Decree No. 155/2020/ND-CP, their charters and relevant laws.
Article 5. Regulations on operation of the Board of Directors
Public companies should refer to the model regulations on operation of the Board of Directors in Appendix III hereof to formulate their own regulations in accordance with the Law on Enterprises, the Law on Securities, the Decree No. 155/2020/ND-CP, their charters and relevant laws.
Article 6. Regulations on operation of the Board of Controllers
Public companies should refer to the model regulations on operation of the Board of Controllers in Appendix IV hereof to formulate their own charters in accordance with the Law on Enterprises, the Law on Securities, the Government’s Decree No. 155/2020/ND-CP, their charters and relevant laws.
Article 7. Regulations on operation of the Audit Committee
Public companies should refer to the model regulations on operation of the Audit Committee in Appendix V hereof to formulate their own charters in accordance with the Law on Enterprises, the Law on Securities, the Government’s Decree No. 155/2020/ND-CP, their charters and relevant laws.
Article 8. Implementation clauses
1. This Circular comes into force from February 15, 2021 and replaces Circular No. 95/2017/TT-BTC dated September 22, 2017 of the Minister of Finance providing guidelines for implementation of the Government’s Decree No. 71/2017/ND-CP dated June 06, 2017 providing guidelines for administration of public companies.
2. In case any of the legislative documents referred to in this Circular is amended or replaced, the newer document shall apply.
3. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Finance for consideration./.
| PP MINISTER |
APPENDIX I
(Enclosed with Circular No. 116/2020/TT-BTC dated December 31, 2020 of the Minister of Finance)
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
----------------
MODEL CHARTER
FOR PUBLIC COMPANIES
CHARTER
[NAME OF COMPANY] JSC.
[Location, date]
TABLE OF CONTENTS
INTRODUCTION
I. DEFINITIONS
Article 1. Definitions
II. Name, type of business, headquarters, branches, representative offices, business locations, operating period and legal representatives of the Company
Article 2. Name, type of business, headquarters, branches, representative offices, business locations, operating period of the Company
Article 3. The Company’s legal representatives
III. Targets, scope of business and operation of the Company
Article 4. Targets of the Company
Article 5. Scope of business and operation of the Company
IV. Charter capital, shares, founding shareholders
Article 6. Charter capital, shares, founding shareholders
Article 7. Share certificate
Article 8. Other securities certificates
Article 9. Transfer of shares
Article 10. Withdrawal of shares (upon enterprise registration)
V. Organizational structure, administration and control
Article 11. Organizational structure, administration and control
VI. SHAREHOLDERS AND GENERAL MEETING OF SHAREHOLDERS
Article 12. Rights of shareholders
Article 13. Obligations of shareholders
Article 14. General Meeting of Shareholders (GMS)
Article 15. Rights and obligations of the GMS
Article 16. Authorizing participation in GMS
Article 17. Changes of rights
Article 18. Convening, agenda and invitations to the GMS
Article 19. Conditions for opening the GMS
Article 20. Procedures for carrying out and voting at the GMS
Article 21. Conditions for ratification of resolutions of the GMS
Article 22. Authority and procedures for carrying out questionnaire survey for ratification of resolutions of the GMS
Article 23. Resolutions and minutes of meetings of the GMS
Article 24. Requesting cancellation of a resolution of the GMS
VII. The Board of Directors
Article 25. Nomination and self-nomination of members of the Board of Directors
Article 26. Term of office and composition of the Board of Directors
Article 27. Rights and obligations of the Board of Directors
Article 28. Remunerations, bonuses and other benefits of members of the Board of Directors
Article 29. President of the Board of Directors
Article 30. Meetings of the Board of Directors
Article 31. Subcommittees of the Board of Directors
Article 32. Person in charge of company administration
VIII. The Director/General Director and other executives
Article 33. Organization of the management apparatus
Article 34. The Company’s executives
Article 35. Designation, dismissal, duties and entitlements of the Director/General Director
IV. The Board of Controllers or Audit Committee affiliated to the Board of Directors
Article 36. Nomination and self-nomination of members of the Board of Controllers (Controllers)
Article 37. Composition of the Board of Controllers
Article 38. Chief Controller
Article 39. Rights and obligations of the Audit Committee
Article 40. Meetings of the Board of Controllers
Article 41. Salaries, remunerations, bonuses and other benefits of members of the Board of Controllers
Article 42. Nomination and self-nomination of members of the Audit Committee
Article 43. Composition of the Audit Committee
Article 44. Rights and obligations of the Audit Committee
Article 45. Meetings of the Audit Committee
Article 46. Reporting by independent members of the Board of Directors in the Audit Committee at the annual GMS
X. Responsibility of members of the Board of Directors, members of the Board of Controllers, the Director/General Director and other executives
Article 47. Responsibility for honesty and prevention of conflict of interest
Article 48. Responsibility for damage and compensation
XI. Rights to access the Company’s documents and records
Article 49. Rights to access the Company’s documents and records
XII. Employees and Trade Union
Article 50. Employees and Trade Union
XIII. Distribution of profits
Article 51. Distribution of profits
XIV. Bank accounts, fiscal years and accounting
Article 52. Bank accounts
Article 53. Fiscal year
Article 54. Accounting
XV. Financial statements, annual reports and responsibility for information disclosure
Article 55. Annual, half-year and quarterly financial statements
Article 56. Annual reports
XVI. AUDIT
Article 57. Audit
XVII. The Company’s seal
Article 58. The Company’s seal
XVIII. Dissolution of the Company
Article 59. Dissolution of the Company
Article 60. Extension of operating period
Article 61. Liquidation
XIX. Settlement of internal disputes
Article 62. Settlement of internal disputes
XX. Revisions to the Company’s Charter
Article 63. Company’s Charter
XXI. Effective date
Article 64. Effective date
INTRODUCTION
This Charter is ratified under the Resolution No. ... dated ... of the GMS
I. DEFINITIONS
Article 1. Definitions
1. For the purpose of this Charter, the terms below are construed as follows:
a) “charter capital” means the total face value of shares that have been sold or subscribed upon establishment of the Company as prescribed in Article 6 of this Charter;
b) “voting capital” means the share capital that bestows upon the holders the right to vote on the issues within the jurisdiction of the GMS;
c) ”the Law on Enterprises” means the Law on Enterprises No. 59/2020/QH14 ratified by National Assembly of the Socialist Republic of Vietnam on June 17, 2020;
d) “the Law on Securities" means the Law on Securities No. 54/2019/QH14 ratified by National Assembly of the Socialist Republic of Vietnam on November 26, 2019;
dd) “Vietnam” means the Socialist Republic of Vietnam;
e) “establishment date” means the day on which the Company’s first Certificate of Enterprise Registration (Certificate of Business Registration and equivalent documents) is issued;
g) “executives” include the Director/General Director, Deputy Director/Deputy General Director, chief accountant and other executives prescribed by the Company’s Charter;
h) “managers” include the President of the Board of Directors, members of the Board of Directors, the Director/General Director and persons holding other managerial positions prescribed by the Company’s Charter;
i) “related persons” are the organizations and individuals defined in Clause 46 Article 4 of the Law on Securities;
k) “shareholder” means an individual or organization that owns at least one share of the Company;
l) “founding shareholder” means a shareholder that holds at least one ordinary share and is included in the Company’s list of founding shareholder;
m) “major shareholder” is defined in Clause 18 Article 4 of the Law on Securities;
n) “operating period” is the period specified in Article 2 of this Charter and may be extended if approved by the GMS;
o) “Stock Exchanges” include Vietnam Exchange (VNX) and its subsidiary companies.
2. The references in this Charter also include their amendments or replacements.
3. The titles of Sections and Articles of this Charter are meant to facilitate readers and do not affect the contents of this Charter.
II. Name, type of business, headquarters, branches, representative offices, business locations, operating period and legal representative of the Company
Article 2. Name, type of business, headquarters, branches, representative offices, business locations, operating period of the Company
1. Name of the Company
- Vietnamese name:
- Foreign language name:
- Abbreviated name:
2. The Company is a joint stock company, which is a juridical person and is conformable with applicable regulations of law of Vietnam.
3. Headquarters:
- Address:
- Phone number:
- Fax:
- E-mail:
- Website:
4. The Company may establish branches and representative offices to pursue its targets in accordance with decisions of the Board of Directors and the law.
5. Unless the Company is shut down before the expiration of the period specified in Clause 2 Article 59 or extends the operating period as prescribed in Article 60 of this Charter, the Company’s operating period shall be indefinite/[...] years from the establishment date.
Article 3. The Company’s legal representatives
The Company has [...] legal representatives, including:
1. [President of the Board of Directors];
2. [Director/General Director];
3. ...
Rights and obligations of the legal representatives
1. [President of the Board of Directors];
2. [Director/General Director];
……
III. Targets, scope of business and operation of the Company
Article 4. Targets of the Company
1. The Company’s business lines: [...]
2. The Company’s operating targets: [...]
Article 5. Scope of business and operation of the Company
The Company may conduct business within the business lines specified in this Charter and changes thereof which have been registered to the business registration authority and published on the National Enterprise Registration Portal [for conditional business lines, the conditions specified in the Law on Investment and relevant laws must be fulfilled].
IV. Charter capital, shares, founding shareholders
Article 6. Charter capital, shares, founding shareholders
1. The Company’s Charter capital is [...] VND (in words: ...)
The Company’s Charter capital is divided into [...] shares with a nominal value of [...] VND/share.
2. The Company’s Charter capital may be changed if approved by the GMS and conformable with regulations of law.
3. The Company’s shares on the ratification date of this Charter include ordinary shares and preference shares (if any). The rights and obligations of shareholders holding each type of these shares are specified in Article 12 and Article 13 of this Charter.
4. The Company may issue other preference shares after it is approved by the GMS and it is conformable with regulations of law.
5. Names, addresses, holdings and other information about the founding shareholders prescribed by the Law on Enterprises and mentioned in Appendix [...] hereof, which is part of this Charter.
Ordinary shares shall be offered first to existing shareholders in proportion to their holdings of ordinary shares in the Company, unless otherwise decided by the GMS. The unsubscribed shares shall be decided by the Board of Directors. The Board of Directors may distribute these shares to other shareholders and persons with no more favorable conditions than those of the shares offered to existing shareholders, unless otherwise approved by the GMS.
6. The Company may repurchase its own shares following the methods specified in this Charter and applicable laws.
7. The Company may issues other types of shares as prescribed by law.
Article 7. Share certificates
1. Shareholders of the Company shall be issued with share certificates which specify their holdings and types of shares being held.
2. The share certificate is a type of securities that certify the holder’s lawful rights and interests to part of the share capital of the issuer. A share certificate shall contain all information specified in Clause 1 Article 121 of the Law on Enterprises.
3. Within [...] days from the submission of the satisfactory application for transfer of ownership of shares as prescribed by the Company, or within [...] days from the day on which the shares are fully paid for under the Company’s share issuance plan (or another time limit specified in the issuance clauses), the holder of the shares shall be issued with the share certificate and is not required to pay the cost of printing the share certificate to the Company.
4. In case the share certificate is lost or damaged, the shareholder shall be reissued with another share certificate by the Company on request. Such a request shall specify:
a) Information about the lost or damaged share certificate;
b) Declaration to take responsibility for any dispute that arises from the reissuance of the share certificate.
Article 8. Other securities certificates
Bond certificates and other securities certificates issued by the Company shall bear the signatures of the legal representatives and seal of the Company.
Article 9. Transfer of shares
1. All shares may be transferred freely unless otherwise prescribed by this Charter and the law. Shares that are listed and registered on Stock Exchanges may be transferred in accordance with regulations of law on securities and the securities market.
2. Shares that are not fully paid for must not be transferred and shall not receive relevant rights such as right to dividends, right to receive shares additionally issued to increase share capital from equity, right to buy new shares and other benefits prescribed by law.
Article 10. Withdrawal of shares (upon enterprise registration)
1. In case a shareholder fails to fully and punctually pay for the shares, the Board of Directors shall send a notice and is entitled to request the shareholder to pay the remaining amount and take liability in proportion to the total face value of the subscribed shares to the Company for the damage caused by the failure to fully pay for the shares.
2. The notice shall specify the new deadline (at least [07 days] from the noticing date), payment location and that the unpaid shares will be withdrawn if they are not paid for as requested.
3. The Board of Directors is entitled to withdraw the shares that are not fully and punctually paid for if such a request is not fulfilled.
4. Withdrawn shares shall be considered authorized shares as prescribed in Clause 3 Article 112 of the Law on Enterprises. The Board of Directors may, directly or through a third party, sell or redistribute these shares under the conditions and methods considered appropriate by the Board of Directors.
5. The shareholder holding the withdrawn shares will no longer be shareholder of these shares but still has the liability in proportion to the total nominal value of the subscribed shares upon withdrawal under the decision of the Board of Directors for the period from the date of withdrawal to the date of payment. The Board of Directors has the full authority to enforce payment for the entire value of the share certificate at the time of withdrawal.
6. The withdrawal notice shall be sent to the holder of withdrawn shares before the withdrawal time. The withdrawal shall be still carried out if the notice is erroneous or the notice is not successfully sent.
V. Organizational structure, administration and control
Article 11. Organizational structure, administration and control
Organizational structure, administration and control of the Company include:
1. The GMS.
2. [The Board of Directors, Board of Controllers (unless the Company applies the model specified in Point a Clause 1 Article 137 of the Law on Enterprises)].
3. [The Board of Directors, Audit Committee (unless the Company applies the model specified in Point b Clause 1 Article 137 of the Law on Enterprises)].
4. The Director/General Director.
VI. Shareholders and GMS
Article 12. Rights of shareholders
1. Ordinary shareholders have the right to:
a) Participate, comment in the GMS; exercise the right to vote directly or through authorized representatives or another method prescribed by the Company’s Charter and the law. Each ordinary share has one vote;
b) Receive dividends at the rate decided by the GMS;
c) Priority when buying new shares in proportion to each shareholder’s holding of ordinary shares;
d) Freely transfer shares to other persons, except in the cases specified in Clause 3 Article 120, Clause 1 Article 127 of the Law on Enterprises and relevant laws;
dd) Access, examine and extract information about names and addresses of voting shareholders; request rectification of incorrect information about themselves;
e) Access, examine and extract or copy the Company’s Charter, minutes of meeting and resolutions of the GMS;
g) When the Company is dissolved or goes bankrupt, receive part of the remaining assets in proportion to their holdings in the Company;
h) Request the Company to repurchase shares in the cases specified in Article 132 of the Law on Enterprises;
i) Equal treatment. Each share of the same type bestows its holder equal rights, obligations and interests. If the Company has preference shares, rights and obligations associated with these preference shares must be approved by the GMS and informed to the shareholders;
k) Access to periodic and extraordinary information disclosed by the Company as prescribed by law;
l) Have their lawful rights and interests protected; demand suspension, cancellation or resolutions and decisions of the GMS and the Board of Directors in accordance with the Law on Enterprises;
m) Other rights prescribed by law and the Company’s Charter.
[Rights associated with other types of shares]
2. The shareholder or group of shareholders that holds at least [05%] of total ordinary shares [or a smaller amount specified in the Company’s Charter] has the rights to:
a) Request the Board of Directors to convene the GMS in accordance with Clause 3 Article 115 and Article 140 of the Law on Enterprises;
b) Examine, extract the minutes, resolutions and decisions of the Board of Directors, biannual and annual financial statements, reports of the Board of Controllers, contracts and transactions subject to approval by the Board of Directors and other documents, except documents relevant to the Company’s trade secrets;
c) Request the Board of Controllers to inspect specific issues relevant to the management and operation of the Company where necessary. The request must be made in writing and contain: full names, mailing addresses, nationalities, ID numbers of shareholders that are individuals; names, enterprise/organization ID numbers and headquarters addresses of shareholders that are organizations; quantity of shares and share subscription time of each shareholder, total shares of the group of shareholders and their holdings; the issues that need inspecting and purposes of inspection;
d) Propose inclusion of the issues in the agenda of the GMS. The proposal must be made in writing and sent to the Company at least [03 working days] before the opening date, [unless another time limit is prescribed by the Company’s Charter]. The proposal shall specify the shareholder’s name, quantity of each type of shares being held by the shareholder and the proposed issues;
dd) Other rights prescribed by law and the Company’s Charter.
3. The shareholder or group of shareholders that holds at least [10%] of total ordinary shares or [a smaller amount specified in the Company’s Charter] is entitled to nominate candidates to the Board of Directors and the Board of Controllers. [Unless otherwise prescribed by the Company’s Charter], candidates shall be nominated as follows:
a) The group of shareholders that nominate candidates to the Board of Directors and the Board of Controllers must inform the participating shareholders before the opening of the GMS;
b) Depending on the quantity of members of the Board of Directors and the Board of Controllers, the shareholders or groups of shareholders prescribed I this Clause may nominate one or some candidates according to the decision of the GMS to the Board of Directors and the Board of Controllers. In case the number of nominated candidates is smaller than the maximum permissible number of candidates specified in the decision of the GMS, the remaining candidates shall be nominated by Board of Directors, the Board of Controllers and other shareholders.
Article 13. Obligations of shareholders
Ordinary shareholders have the obligations to:
1. Fully and punctually pay for the subscribed shares.
2. Not withdraw the capital that has been contributed in the form of ordinary shares in any shape or form, unless these shares are repurchased by the Company or other persons. Otherwise, the shareholder and persons with related interests in the Company shall be jointly responsible for the debts and other liabilities of the Company within the value of withdrawn shares and the damage caused.
3. Comply with the Company’s Charter and internal regulations on company administration.
4. Comply with resolutions and decisions of the GMS and the Board of Directors.
5. Protect the confidential of information provided by the Company in accordance with the Company’s Charter and the law; only use the provided information for exercising and protecting their lawful rights and interests; do not copy, send the information provided by the Company to any other organizations and individuals.
6. Participate in the GMS and exercise the right to vote in the following manners:
a) Participate and vote in person at the meeting;
b) Authorize other organizations and individuals to participate and vote at the meeting;
c) Participate and vote at online meeting; cast electronic votes or in other electronic forms;
d) Send votes by mail, fax or email;
dd) Send votes using [other means] prescribed by the Company’s Charter.
7. Take personal responsibility when committing any of the following acts in the name of the Company in any shape or form:
a) Violations of law;
b) Business operations and other transactions for personal gain or serving the interests of other organizations and individuals;
c) Paying undue debts while the Company is facing financial risks.
8. Fulfill other obligations prescribed by applicable regulations of law.
[Obligations associated with other types of shares]
Article 14. General Meeting of Shareholders (GMS)
1. The GMS consists of all voting shareholders and is the highest decision-making body of the Company. The GMS shall be conducted annually and within 04 months from the ending date of the fiscal year. Unless otherwise prescribed by the Company’s Charter, the Board of Directors may delay the date of conducting the annual GMS but still within 06 months from the ending date of the fiscal year. Extraordinary GMS may be conducted in additional to annual GMS. The location of GMS is where the chair participates in and must be within Vietnam’s territory.
2. The Board of Directors shall convene the annual GMS and choose a suitable location. The annual GMS shall decide the issues prescribed by law and the Company’s Charter and consider approving the audited annual financial statement. In case the audit report contains unqualified opinions, adverse opinions or disclaimer of opinion, the Company shall invite representative of the accredited audit organization that audited the Company’s financial statement to participate in the annual GMS. The invited representative of the audit organization has the responsibility to participate in the annual GMS.
3. The Board of Directors shall convene an extraordinary GMS in the following cases:
a) It is considered necessary for the Company’s interests by the Board of Directors;
b) The remaining number of Board of Directors or Board of Controllers is smaller than the minimum number prescribed by law;
c) It is requested by the shareholder or group of shareholders prescribed in Clause 2 Article 115 of the Law on Enterprises; the request shall be made in writing, specify the reasons for convening such a meeting, and bear signatures of relevant shareholders. The written request may be made into multiple copies with signatures of relevant shareholders;
d) It is requested by the Board of Controllers;
dd. Other cases prescribed by law and this Charter.
4. Convening the extraordinary GMS
a) The Board of Directors shall convene the GMS within [30] days from the day on which the number of members of the Board of Directors, independent members of the Board of Directors or members of the Board of Controllers falls below the minimum number mentioned in Point b Clause 3 of this Article, or from the date of request mentioned in Point c and Point d Clause 3 of this Article;
b) In case the Board of Directors fails to convene the GMS as prescribed in Point a Clause 4 of this Article, the Board of Controllers shall convene the GMS instead of the Board of Directors within the next 30 days as prescribed in Clause 3 Article 140 of the Law on Enterprises;
c) In case the Board of Controllers fails to convene the GMS as prescribed in Point b Clause 4 of this Article, the shareholder or group of shareholders mentioned in Point c Clause 3 of this Article is entitled to request the Company’s representatives to convene the GMS in accordance with the Law on Enterprises;
[In this case, the requesting shareholder or group of shareholders may request the business registration authority to supervise the process of convening, conducting and decision-making of the GMS. The costs of convening and conducting the GMS shall be reimbursed by the Company. These costs do not include the costs incurred by the shareholders during their participation in the GMS, including lodging and travel costs.]
d) The GMS shall be conducted following the procedures specified in Clause 5 Article 140 of the Law on Enterprises;
Article 15. Rights and obligations of the GMS
1. The GMS has following rights and obligations:
a) Approve the Company’s development orientations;
b) Decide the types of authorized shares and quantity of each type; decide annual dividends of each type of shares;
c) Elect, dismiss and discharge members of the Board of Directors and members of the Board of Controllers;
d) Decide investment in or sale of assets that are worth at least [35%] of the total assets written the Company's latest financial statement, [unless another ratio or value is prescribed by the Company’s Charter];
dd) Decide revisions to the Company’s Charter;
e) Approve annual financial statements;
g) Decide repurchase of over 10% of shares of each type;
h) Consider taking actions against violations committed by members of the Board of Directors and members of the Board of Controllers if they cause damage to the Company and its shareholders;
i) Decide re-organization and dissolution of the Company;
k) Decide the budget or total remunerations, bonuses and other benefits of the Board of Directors and the Board of Controllers;
l) Approve internal regulations on company administration, operation of the Board of Directors and the Board of Controllers;
m) Approve the list of accredited audit organizations; decide whether to allow accredited audit organizations to inspect the Company’s operation; dismiss accredited auditors where necessary;
n) Other rights and obligations prescribed by law.
2. The GMS shall discuss and approve the following issues:
a) The Company’s annual business plan;
b) The audited annual financial statement;
c) The report of the Board of Directors on administration and performance of the Board of Directors and each of its members; [in case the Company applies the model specified in Point b Clause 1 Article 137 of the Law on Enterprises, independent members of the Board of Directors shall report at the annual GMS in accordance with Article 284 of the Government’s Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities];
d) The report of the Board of Controllers on the Company’s business performance, performance of the Board of Directors, the Director/General Director;
dd) The self-assessment report on performance of the Board of Controllers and its members;
e) Dividend per share of each type;
g) The quantity of members of the Board of Directors and the Board of Controllers;
h) Election, dismissal and discharge of members of the Board of Directors and members of the Board of Controllers;
i) The budget or total remunerations, bonuses and other benefits of the Board of Directors and the Board of Controllers;
k) Approval for the list of accredited audit organizations; whether to allow accredited audit organizations to inspect the Company’s operation; dismiss accredited auditors where necessary;
l) Revisions to the Company’s Charter;
m) Types and quantity of additional shares of each type and transfer of shares by founders within the first 03 years after the establishment date;
n) Division, consolidation, merger or conversion of the Company;
o) Re-organization and dissolution (liquidation) of the Company and appointment of the liquidator;
p) Investment in or sale of assets that are worth at least [35%] of the total assets written the Company’s latest financial statement, [unless another ratio or value is prescribed by the Company’s Charter];
q) Repurchase of over 10% of shares of each type;
r) Conclusion of contracts and transactions with the entities specified in Clause 1 Article 167 of the Law on Enterprises that are worth at least 35% of the Company’s total assets written in the latest financial statement;
s) Transactions specified in Clause 4 Article 293 of the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
t) Internal regulations on company administration, operation of the Board of Directors and the Board of Controllers;
u) Other issues prescribed by law and this Charter.
3. All resolutions and issues that have been included in the meeting agenda shall be discussed and voted on during the GMS.
Article 16. Authorizing participation in GMS
1. Shareholders and authorized representatives of shareholders that are organizations may directly participate or authorize one or some other organizations and individuals to participate in the GMS in one of the manners specified in Clause 3 Article 144 of the Law on Enterprises.
2. The authorization mentioned in Clause 1 of this Article shall be made into written documents. Authorization documents shall specify the name of the authorizing shareholder, the authorized individual or organization, the quantity of shares authorized, authorization contents and scope, authorization period, signatures of the authorizing party and the authorized party.
The authorized participants shall submit the authorization documents when registering their participation in the meeting. In case an authorized participant authorizes another person to participate in the meeting, the original authorization document issued by the shareholder or authorized representative of the shareholder that is an organization shall be presented (if it is yet to be registered with the Company).
3. Votes casted the authorized participants within authorization scope shall be effective unless:
a) The authorizing person is dead, has have limited legal capacity or is incapacitated;
b) The authorizing person has cancelled the authorization;
c) The authorizing person has cancelled the authority of the authorized person;
This Clause does not apply in case the Company receives a notification of any of the aforementioned events before the opening hour of the GMS or before the GMS is re-convened.
Article 17. Changes of rights
1. The change or cancellation of special rights associated with a certain type of preference shares is effective when it is voted for by a number of shareholders that represent at least 65% of the votes. The GMS’s resolution that contains adverse changes to the rights and obligations of preference shareholders may only be ratified if it is voted for by a number of participating preference shareholders that hold at least 75% of preference shares of the same type, or approved by a number of preference shareholders that hold at least 75% of preference shares of the same type in case of questionnaire survey.
2. A meeting of shareholders holding a type of preference shares for approving the aforementioned change of right shall only be carried out when it is participated in by at least 02 shareholders (or their authorized representatives) that hold at least one third (1/3) of the nominal value of these shares. If the number of participating shareholders is not adequate, another meeting shall be carried out within 30 days regardless of the number of participating shareholders of that type of shares (or their authorized representatives) and the quantity of their shares. During the meeting, shareholders of that type of shares may, directly or through their representatives, request a ballot. Each share of that type has the same number of votes in such a meeting.
3. Procedures for carrying out such a meeting are similar to those specified in Articles 19, 20 and 21 of this Charter.
4. Unless otherwise prescribed by shares issuance clauses, special rights associated with preference shares regarding some or all issues relevant to distribution of profit or assets of the Company shall not be changed when the Company issues additional shares of the same type.
Article 18. Convening, agenda and invitations to the GMS
1. The Board of Directors shall convene annual and extraordinary GMS. The Board of Directors shall convene extraordinary GMS in the cases specified in Clause 3 Article 14 of this Charter.
2. The person who convenes the GMS shall perform the following tasks:
a) Compile the list of shareholders eligible to participate in and vote at the GMS. This list shall be compiled within [10 days] before the day on which the invitation to the GMS is sent [unless a shorter time limit is decided by the Company’s Charter]. The Company shall announce the compilation of this list at least 20 days before the deadline for registration;
b) Prepare the meeting agenda and contents;
c) Prepare meeting documents;
d) Draft the resolution of the GMS according to the meeting contents;
dd) Determine the meeting time and location;
e) Make an announcement and send invitations to all shareholders that are eligible to participate in the GMS;
g) Perform other tasks serving the general meeting.
3. The invitations to the GMS shall be sent to mailing addresses of all shareholders by express mail and posted on the websites of the Company, SSC and the Stock Exchange where the Company’s shares are listed or registered. The person that convenes the GMS shall send invitations to all shareholders on the list of shareholders eligible to participate in the GMS at least 21 days before the opening date of the GMS [unless a longer time limit is prescribed by the Company’s Charter] (from the day on which the invitation is validly sent). The agenda of the GMS and documents relevant to the issues to be voted on at the GMS shall be sent to the shareholders and/or posted on the Company’s website. In case these documents are not enclosed with the invitations, the invitations must contain the URL for these documents, Including:
a) The meeting agenda and documents to be used during the meeting;
b) The list of and detailed information about all candidates for members of the Board of Directors and members of the Board of Controllers (in case of election thereof);
c) Votes;
d) Draft resolution on each issue mentioned in the meeting agenda.
4. The shareholder or group of shareholders mentioned in Clause 2 Article 12 of this Charter is entitled to propose inclusion of other issues to the agenda of the GMS. The proposal must be made in writing and sent to the Company at least [03 working days] before the opening date of the GMS, [unless another time limit is prescribed by the Company’s Charter]. The proposal shall specify the shareholder’s name, quantity of each type of shares being held by the shareholder and the proposed issues.
5. The person who convenes the GMS is entitled to reject the proposal mentioned in Clause 4 of this Article in any of the following cases:
a) The proposal is sent against the regulations of Clause 4 of this Article;
b) The proposing shareholder or group of shareholders is holding less than [5%] of total ordinary shares when the proposal is made as prescribed in Clause 2 Article 12 of this Charter;
c) The proposed issue is outside the jurisdiction of the GMS;
d) Other cases prescribed by law and this Charter.
6. The person who convenes the GMS shall accept and include the proposed issues mentioned in Clause 4 of this Article to the intended meeting agenda, except in the cases specified in Clause 5 of this Article; the proposed issues shall be officially included in the meeting agenda if approved by the GMS.
Article 19. Conditions for opening the GMS
1. The GMS shall be carried out when it is participated in by a number of shareholders that represent over [50%] of the voting shares (or a specific ratio specified in the Company’s Charter].
2. In case the number of participating shareholders specified in Clause 1 of this Article is not adequate, invitations to the second meeting shall be sent within [30 days] from the intended date of the first meeting, [unless otherwise prescribed by the Company’s Charter]. The second GMS shall be opened when it is participated in by a number of shareholders that represent at least [33%] of the voting shares [or a specific ratio specified in the Company’s Charter].
3. In case the number of participating shareholders specified in Clause 2 of this Article is not adequate, invitations to the third meeting shall be sent within [20 days] from the intended date of the second meeting, [unless otherwise prescribed by the Company’s Charter]. The third GMS shall be opened regardless of the number of participating shareholders.
Article 20. Procedures for carrying out and voting at the GMS
1. Before opening the GMS, the Company shall complete the procedures for shareholder registration. All shareholders that are eligible to participate shall be registered in the following order:
a) The Company shall issue to each voting shareholder or their authorized representative a vote card which has a registration number and full name of the shareholder or the authorized representative, and the number of votes of the shareholder. The GMS shall discuss and vote on each issue in the agenda. Votes include affirmative votes, negative votes and abstentions. Affirmative votes shall be collected first, negative votes later. Affirmative votes and negative votes shall be counted. The vote counting result shall be announced by the chair right before the meeting is closed [unless otherwise prescribed by the Company’s Charter]. The GMS shall elect vote counters or vote counting supervisors at the request of the chair. The number of members of the vote counting board shall be decided by the GMS at the request of the chair;
b) The shareholders and shareholders’ authorized representatives that arrive at the meeting after the opening time may register their presence, participate and vote after registration. The chair does not have the responsibility to suspend the meeting and the effect of the decisions voted on before their presence shall remain unchanged.
2. Election of the chair, secretary and vote counting board:
a) The President of the Board of Directors shall chair or authorize another member of the Board of Directors to chair the GMS if it is convened by the Board of Directors. If the President of the Board of Directors is absent or not able to work, other members of the Board of Directors shall elect one of them as the chair under the majority rule. In case a chair cannot be elected, the Chief Controller shall preside over the election of the chair among the participants by the GMS, in which case the person who receives the most votes shall chair the meeting;
b) In the case specified in Point a of this Clause, the person that signs the decision to convene the GMS preside over the election of the chair by the GMS. The person who receives the most votes shall chair the meeting;
c) The chair shall appoint one or some people as secretaries of the meeting;
d) The GMS shall elect one or some persons to the vote counting board at the request of the chair.
3. The meeting agenda and contents shall be approved by the GMS during the opening session. The agenda shall specify the time of each issue.
4. The chair is entitled to implement necessary and reasonable measures for making sure the meeting is kept in order, adheres to the approved agenda and reflects the needs of the majority of participants.
a) Arrange seats at the meeting location;
b) Ensure safety of the participants;
c) Enable shareholders to participate in (or continue to participate in) the GMS. The person who convenes the GMS has the full authority to change the aforementioned measures and implement any necessary measures such as issuing entry passes or other methods of selection.
5. The GMS shall discuss and vote on each issue in the agenda. Votes include affirmatives, negatives and abstentions. The vote counting result shall be announced right before the meeting is closed.
6. The shareholders and shareholders’ authorized representatives that arrive at the meeting after the opening time may register their presence, participate and vote after registration. The effect of the decisions voted on before their presence shall remain unchanged.
7. The person who convenes the GMS or the chair has the rights to:
a) Request all participants to undergo inspection or other lawful and reasonable security measures;
b) Request a competent authority to maintain order during the meeting; expel those who refuse to comply with the chair’s requests, disrupt the order, obstruct the progress of the meeting or refuse to undergo security measures.
8. The chair is entitled to delay the meeting after an adequate number of participants have registered for up to 03 days from the initial meeting date. The GMS may only be delayed or relocated in the following cases:
a) The current location does not have adequate convenient seats for all participants;
b) Communications equipment is not sufficient for discussion and voting by participating shareholders;
c) The meeting is disrupted by one or some participants thus threatening the fairness and legitimacy of the meeting.
9. In case the chair delay or suspend the GMS against the regulations of Clause 8 of this Article, the GMS shall elect another participant as the chair, who will chair the meeting until the end; all resolutions ratified at that meeting shall be effective.
10. In case of an online meeting, the Company shall ensure that participating shareholders are able to vote electronically in accordance with Article 144 of the Law on Enterprises and Clause 3 Article 273 of Decree No. 155/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities.
Article 21. Conditions for ratification of resolutions of the GMS
1. Resolutions on the following issues shall be issued if they receive at least [65%] affirmative votes from participating shareholders, except for the cases specified in Clauses 3, 4 and 6 Article 148 of the Law on Enterprises [the specific ration shall be specified in the Company’s Charter]:
a) Types of shares and quantity of each type;
b) Change of business lines;
c) Changes to the Company’s organizational structure;
d) Investment projects or sale of assets that are worth at least [35%] of the total assets written the Company’s latest financial statement, unless another ratio or value is prescribed by the Company’s Charter;
dd)) Re-organization, dissolution of the Company;
e) [Other issues specified in the Company’s Charter]
2. A resolution shall be ratified when it is voted for by a number of shareholders that hold over [50%] of the votes of all participating shareholders, except for the cases specified in Clause 1 of this Article and Clauses 3, 4, 6 Article 148 of the Law on Enterprises [the specific ratio shall be specified in the Company’s Charter].
3. A resolution of the GMS that is voted for by 100% of the voting shares shall be lawful and effective even if the procedures for convening the meeting and ratifying the resolution are not conformable with the Law on Enterprises and the Company’s Charter.
Article 22. Authority and procedures for carrying out questionnaire survey for ratification of resolutions of the GMS
The authority and procedures for ratifying resolutions of the GMS by questionnaire survey:
1. The Board of Directors is entitled to carry out a questionnaire survey to ratify resolutions of the GMS when it is considered necessary for the Company’s interests, except for the cases specified in Clause 2 Article 147 of the Law on Enterprises [unless otherwise prescribed by the Company’s Charter].
2. The Board of Directors shall prepare and send the questionnaires, draft resolutions of the GMS, explanatory documents to the voting shareholders at least 10 days before the deadline for submission of the questionnaires [unless a longer time limit is prescribed by the Company's Charter] in accordance with Clause 3 Article 18 of this Charter.
3. A questionnaire shall contain the following information:
a) The enterprise’s name, headquarters address, identification number;
b) Purposes of the survey;
c) Full name, mailing address, nationality, ID number of the shareholder that is an individual; name, enterprise/organization ID number and headquarters address of the shareholder that is an organization or full name, mailing address, nationality, ID number of the representative of the shareholder that is an organization; quantity of shares of each type and the number of votes of the shareholder;
d) The issues being voted on;
dd) Voting options for each issue, including affirmative, negative and abstentions;
e) Submission deadline;
g) Full name and signature of the President of the Board of Directors.
4. Shareholders may send their completed questionnaires to the Company by mail, fax or email as follows:
a) The questionnaire that is sent by mail shall bear the signature of the shareholder that is an individual or signature of the authorized representative of the shareholder that is an organization. The questionnaire shall be put into a sealed envelope, which must not be opened before vote counting;
b) Questionnaires that are sent by fax or email must be kept confidential until vote counting time;
c) The questionnaires that are sent to the Company after the deadline or that are opened (for those sent by mail) or revealed (for those sent by fax or email) shall be invalidated. The shareholders that do not submit their questionnaires shall be considered not voting.
5. The Board of Directors shall count the votes and prepare the vote counting records in the presence of the Board of Controllers or shareholders that are not holding managerial positions in the Company. The vote counting record shall contain the following information:
a) The enterprise’s name, headquarters address, identification number;
B) The purposes and issues voted on;
c) The quantity of shareholders and cast votes, including the quantity of valid and invalid votes, vote sending methods and the list of shareholders that have cast their votes;
d) Quantity of affirmative votes, negative votes and abstentions on each issue;
dd) Ratified issues and ratio of affirmative votes;
g) Full name and signature of the President of the Board of Directors.
Members of the Board of Directors, vote counters and vote counting supervisors shall be jointly responsible for the truthfulness and accuracy of the vote counting records and any damage caused by the decisions that are ratified because of inaccurate vote counting.
6. The vote counting record and resolutions shall be sent to the shareholders within 15 days from the vote counting completion date, or uploaded to the Company’s website within 24 hours after vote counting is completed.
7. The completed questionnaires, vote counting record, ratified resolutions and documents enclosed with questionnaires shall be retained at the Company’s headquarters.
8. A resolution shall be ratified by questionnaire survey if it receive at least [50%] affirmative votes from voting shareholders [or a specific ratio specified by the Company’s Charter] and has the same value as those ratified at the GMS.
Article 23. Resolutions and minutes of meetings of the GMS
1. Minutes of all GMS shall be taken in the form of written documents and may also be recorded or stored in other electronic forms. The minutes must be taken in Vietnamese and may also be in foreign languages with the following contents:
a) The enterprise’s name, headquarters address, identification number;
b) Time and location of the GMS;
c) Agenda and contents of the meeting;
d) Full names of the chair and secretaries;
dd) Summary of developments of the meeting and comments made during the meeting on each issue in the meeting agenda;
e) The number of shareholders and their votes; a list of registered shareholders, shareholders’ representatives that participated in the meeting, their holdings and votes;
g) Total votes on each issue, voting method, numbers of valid votes, invalid votes, affirmative votes, negative votes and abstentions; corresponding ratios of these votes to total number of votes of participating shareholders;
h) Ratified issues and ratios of affirmative votes;
i) Full name and signatures of the chair and secretaries. In case the chair or a secretary refuses to sign the minutes, the minutes is still effective if it bears the signatures of all other participating members of the Board of Directors and have adequate information prescribed in this Clause. The minutes shall specify that the chair or secretary refuses to sign it.
2. The GMS minutes shall be completed and ratified before the meeting ends. The chair and secretaries or other persons that sign the minutes shall be jointly responsible for its truthfulness and accuracy.
3. The minutes in Vietnamese and foreign languages have equal legal value. In case of discrepancies between the Vietnamese version and the foreign language version, the former shall apply.
4. Resolutions, minutes of the GMS, the list of registered participating shareholders bearing their signatures, meeting participation authorization documents, documents enclosed to the minutes (if any) and documents enclosed to the invitations shall be disclosed in accordance with regulations of law on disclosure of information on the securities market and retained at the Company’s headquarters.
Article 24. Requesting cancellation of a resolution of the GMS
Within 90 days from the receipt of the resolution or minutes of the GMS or the vote counting record, the shareholder or group of shareholders specified in Clause 2 Article 115 of the Law on Enterprises is entitled to request the court or arbitral tribunal to consider cancelling all or part of the resolution of the GMS in the following cases:
1. The procedures for convening the meeting and decision-making of the GMS seriously violate the Law on Enterprises and the Company’s Charter, except in the cases specified in Clause 3 Article 21 of this Charter.
2. The contents of the resolution violate regulations of law or this Charter.
VII. The BOARD OF DIRECTORS
Article 25. Nomination and self-nomination of members of the Board of Directors
1. After candidates for members of the Board of Directors have been nominated, the Company shall publish information about these candidates at least 10 days before the opening date of the GMS on the Company’s website for the shareholders to study their profiles before voting. Each candidate shall prepare a written declaration that information about him/her is correct and to perform his/her duties in an honest and prudent manner for the best interests of the Company if he/she is given the position of member of the Board of Directors. Information about candidates includes:
a) Full name, date of birth;
b) Qualifications;
c) Work experience;
d) Other managerial positions (including positions in the Board of Directors of other companies);
dd) Interests relevant to the Company and the Company’s related parties;
e) Other information (if any) specified in the Company’s Charter;
g) The public company shall publish information about the companies in which the candidates are holding the position of members of the Board of Directors and other managerial positions and their interests in these companies (if any).
2. The shareholder or group of shareholders that holds at least 10% of total ordinary shares or a smaller amount specified in the Company’s Charter is entitled to nominate candidates to the Board of Directors in accordance with the Law on Enterprises and the Company’s Charter.
3. In case the number of candidates is smaller than the minimum number specified in Clause 5 Article 115 of the Law on Enterprises, the incumbent Board of Directors shall nominate more candidates or organize the nomination in accordance with the Company’s Charter, company administration regulations and regulations on operation of the Board of Directors. This must be announced before the GMS starts to vote for members of the Board of Directors as prescribed by law.
4. Members of the Board of Directors shall satisfy the standards and conditions specified in Clause 1 and Clause 2 Article 155 of the Law on Enterprises and [the Company's Charter].
Article 26. Term of office and composition of the Board of Directors
1. a) The Board of Directors has [...] members;
2. The term of office of members of the Board of Directors shall not exceed 05 years and has no term limit. An individual may only be elected as an independent member of Board of Directors of a company for up to 02 consecutive terms. In case the term of office of all members of the Board of Directors end at the same time, they shall remain members of the Board of Directors until new members are elected and take over the works, [unless otherwise prescribed by the Company’s Charter].
3. Composition of the Board of Directors:
At least one third (1/3) of the members of the Board of Directors of the Company shall be non-executive members. The Company shall minimize the number of members of the Board of Directors that concurrently hold executive positions in the Company to ensure the independence of the Board of Directors.
[If the Company is unlisted and applies the model specified in Point b Clause 1 Article 137 of the Law on Enterprises], at least one fifth (1/5) of its members of the Board of Directors must be independent members. In case the Board of Directors of this unlisted public company has fewer than 05 members, at least 01 of them must be an independent member.
[If the Company has been listed] The total number of independent members of the Board of Directors shall satisfy the following requirements:
a) At least 01 independent member if the Board of Directors has 03 – 05 members;
b) At least 02 independent members if the Board of Directors has 06 – 08 members;
c) At least 03 independent members if the Board of Directors has 09 – 11 members.
4. A member of the Board of Directors loses the status of member of the Board of Directors when he/she is replaced, dismissed or discharged by the GMS as prescribed in Article 160 of the Law on Enterprises.
5. Information about designation of members of the Board of Directors shall be disclosed in accordance with regulations of law on information disclosure on the securities market.
6. Members of the Board of Directors are not necessarily shareholders of the Company, [unless otherwise prescribed by the Company's Charter];
Article 27. Rights and obligations of the Board of Directors
1. The Board of Directors is a managerial body of the Company and has the full authority to make decisions, exercise rights and obligations of the Company in the name of the Company, except for the rights and obligations of the GMS.
2. Rights and obligations of the Board of Directors shall be prescribed by law, the Company’s Charter and the GMS. To be specific:
a) Decide the strategy, medium-term development and annual business plans of the Company;
b) Propose types of authorized shares and quantity of each type;
c) Decide the sale of unsold shares within the number of authorized shares of each type; decide other forms of raising additional capital;
d) Decide selling prices for shares and bonds of the Company;
dd) Decide repurchase of shares in accordance with Clause 1 and Clause 2 Article 133 of the Law on Enterprises;
e) Decide investment plans and investment projects within its jurisdictions and limits prescribed by law;
g) Decide solutions for market development, marketing and technology;
h) Approve contracts for purchase, sale, lending and other contracts and transactions that are worth at least [35%] of the total assets written the Company’s latest financial statement, [unless another ratio or value is prescribed by the Company’s Charter], contracts and transactions within the jurisdiction of the GMS as prescribed in Point d Clause 2 Article 138, Clause 1 and Clause 3 Article 167 of the Law on Enterprises;
i) Elect, dismiss, discharge the President of the Board of Directors; designate, discharge, conclude and terminate contracts with the Director/General Director and other key managers prescribed by the Company’s Charter; decide salaries, remunerations, bonuses and other benefits of these managers; authorize representatives to participate in the Board of Members or GMS of other companies; decide their remunerations and other benefits;
k) Supervise the Director/General Director and other managers operating everyday business of the Company;
l) Decide the organizational structure, rules and regulations of the Company, establishment of subsidiary companies, branches, representative offices, capital contribution and purchase of shares of other enterprises;
m) Approve the agenda and documents serving the GMS; convene the GMS or collect comments for the GMS to ratify its resolutions;
n) Submit audited annual financial statements to the GMS;
o) Propose dividends; decide the deadlines and procedures for paying dividends or settling losses incurred during business operation;
p) Propose re-organization, dissolution of the Company; request bankruptcy of the Company;
q) Decide promulgation of operation regulations of the Board of Directors, internal regulations on company administration after they are ratified by the GMS; decide promulgation of operating regulations of the Audit Committee affiliated to the Board of Directors, regulations on information disclosure;
s) Other rights and obligations prescribed by the Law on Enterprises, the Law on Securities, other regulations of law and the Company's Charter.
3. The Board of Directors shall submit reports on its performance Pursuant to Article 280 of Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities.
Article 28. Remunerations, bonuses and other benefits of members of the Board of Directors
1. The company is entitled to pay remunerations and bonuses to members of the Board of Directors according to business performance.
2. Members of the Board of Directors are entitled to remunerations and bonuses. Remunerations are calculated according to the number of working days necessary for completion of their tasks and the daily rate. The Board of Directors shall estimate the remuneration of each member under unanimity rule. The total remunerations and bonuses for the Board of Directors shall be decided by the annual GMS.
3. Remunerations of each member of the Board of Directors shall be recorded as the Company’s operating costs in accordance with regulations of law on corporate income tax, presented in a separate section of the Company’s annual financial statement and reported at the annual GMS.
4. [Members of the Board of Directors who are holding the executive positions or working in subcommittees of the Board of Directors or performing tasks other than normal tasks of members of the Board of Directors may be paid an additional remuneration in the form of a lump sum, salary, commission, profit percentage or another form decided by the Board of Directors].
5. Members of the Board of Directors are entitled to reimbursement for the costs of travel, lodging and other reasonable costs incurred during the performance of their tasks, including the costs of participation in meetings of the GMS, the Board of Directors or its subcommittees.
6. Members of the Board of Directors may have responsibility insurance purchased by the Company if this is approved by the GMS. This insurance does not cover responsibility of members of the Board of Directors relevant to violations against the law and the Company’s Charter.
Article 29. President of the Board of Directors
1. The President of the Board of Directors shall be elected among the members of the Board of Directors by the Board of Directors, and dismissed by the Board of Directors.
2. The President of the Board of Directors must not concurrently hold the position of Director/General Director.
3. Rights and obligations of the President of the Board of Directors:
a) Formulate operating plans and programs of the Board of Directors;
b) Prepare the agenda and documents of meetings; convene and chair meetings of the Board of Directors;
c) Organize the ratification of resolutions and decisions of the Board of Directors;
d) Supervise the process of implementation of resolutions and decisions of the Board of Directors;
dd) Chair the GMS;
e) Other rights and obligations prescribed by the Law on Enterprises and [the Company’s Charter].
4. In case the President of the Board of Directors submits a resignation letter or is dismissed, the Board of Directors shall elect a new President within [10 days] from the resignation or dismissal date.
5. In case the President of the Board of Directors is not present or is not able to perform his duties, he/she shall authorize another member in writing to perform the rights and obligations of the President of the Board of Directors in accordance with the Company’s Charter. In case no one is authorized or the President of the Board of Directors is dead, missing, held in police custody, imprisoned, detained in a mandatory rehabilitation center or correctional institution, has fled the residence, has limited capacity or is incapacitated, has difficulties controlling his/her behaviors, is prohibited by the Court from holding certain positions or doing certain works, the remaining members shall elect one of them to hold the position of President of the Board of Directors under the majority rule until a new decision is issued by the Board of Directors.
Article 30. Meetings of the Board of Directors
1. The President of the Board of Directors shall be elected during the first meeting of the Board of Directors within 07 working days after the same Board of Directors is elected. This meeting shall be convened and chaired by the member that receives the most votes. In case of a tie, the members shall vote under the majority rule to choose 01 person to convene the Board of Directors.
2. The Board of Directors shall have at least 01 meeting per quarter and may have ad hoc meetings.
3. The President of the Board of Directors shall convene a meeting of the Board of Directors in the following cases:
a) The meeting is requested by the Board of Controllers or independent members of the Board of Directors;
b) The meeting is requested by the Director/General Director or at least 05 more managers;
c) The meeting is requested by at least 02 members of the Board of Directors;
d) [Other cases prescribed by the Company’s Charter].
4. The request for meeting mentioned in Clause 3 must be made in writing, specify the purposes, issues that need discussing and deciding by the Board of Directors.
5. The President of the Board of Directors shall convene the Board of Directors within 07 working days from the receipt of the request mentioned in Clause 3 of this Article. Otherwise, the President of the Board of Directors shall be responsible for the damage incurred by the Company; the requester is entitled to convene the meeting instead of the President of the Board of Directors.
6. The President of the Board of Directors or the person who convenes the meeting of the Board of Directors shall send invitations at least [03 working days] before the meeting [unless otherwise prescribed by the Company’s Charter]. The invitation shall specify the meeting time, location, agenda, issues that need discussing and deciding. The invitation shall be enclosed with documents to be used at the meeting and votes.
The invitations to the meeting of the Board of Directors may be a physical invitation, by phone, fax, email or other forms prescribed by the Company’s Charter as long as they are delivered to the mailing address of each member of the Board of Directors registered at the Company.
7. The President of the Board of Directors or the person who convenes the meeting shall send the same invitations and enclosed documents to members of the Board of Controllers.
Members of the Board of Controllers are entitled to attend meetings of the Board of Directors; they are entitled to discuss but must not vote.
8. The meeting of the Board of Directors shall be opened when it is participated in by three fourths (3/4) of the members. In case the number of participating members is not adequate, the second meeting shall be convened within [07 days] from the intended date of the first meeting, [unless a shorter time limit is prescribed by the Company’s Charter]. The second meeting shall be opened when it is participated in by more than half of the members of the Board of Directors.
9. It is considered that a member of the Board of Directors has participated in and voted at a meeting when he/she:
a) Participate and vote in person at the meeting;
b) Authorizes another person to participate in the meeting and vote in accordance with Clause 11 of this Article;
c) Participate and vote at online meeting; cast electronic votes or in other electronic forms;
d) Send votes by mail, fax or email;
dd) Sends his/her votes using other means [prescribed by the Company’s Charter].
10. In case the votes are sent to the meeting by mail, they must be put in sealed envelopes and delivered to the President of the Board of Directors at least 01 hour before the opening hour. The votes shall only be opened in the presence of the meeting participants.
11. The members shall participate in all meetings of the Board of Directors. A member may authorize another person to participate in the meeting and vote if it is approved by the majority of the members of the Board of Directors.
12. [Unless a higher ratio is prescribed by the Company’s Charter], a resolution or decision of the Board of Directors will be ratified if it is approved by the majority of the participating members. In case of a tie, the President of the Board of Directors shall have the casting vote.
Article 31. Subcommittees of the Board of Directors
1. The Board of Directors may establish subcommittees that will take charge of development policies, personnel, salaries and bonuses, internal audit, risk management. The quantity of members of each subcommittee shall be decided by the Board of Directors with at least [03 persons] that are members of the Board of Directors and external members. [Independent members of the Board of Directors/non-executive members of the Board of Directors] shall make up a majority of the subcommittee and one of these member shall be designated as the chief of the subcommittee under a decision of the Board of Directors. The subcommittees shall operate in accordance with regulations of the Board of Directors. A subcommittee's resolution is only effective when it is voted for by the majority of its members during its meetings.
2. The implementation of decisions of the Board of Directors or its subcommittees shall be conformable with applicable regulations of law, the Company’s Charter and company administration regulations.
Article 32. Person in charge of company administration
1. The Board of Directors of the Company shall appoint at least 01 person in charge of company administration, who will assist in administration works and may concurrently hold the position of the Company’s secretary as prescribed in Clause 5 Article 156 of the Law on Enterprises.
2. The person in charge of company administration must not concurrently work for the accredited audit organization that is auditing the Company’s financial statements.
3. The person in charge of company administration has the following rights and obligations:
a) Provide consultancy for the Board of Directors in organizing the General Meeting of Shareholders and performance of relevant tasks between the Company and its shareholders;
b) Prepare for meetings of the Board of Directors, the Board of Controllers and the GMS as requested by the Board of Directors or the Board of Controllers;
c) Provide consultancy on meeting procedures;
d) Participate in the meetings;
dd) Provide consultancy on procedures for lawful issuance of resolutions of the Board of Directors
e) Provide financial information, copies of minutes of meetings of the Board of Directors and other information for members of the Board of Directors and the Board of Controllers;
g) Supervise and report to the Board of Directors on the Company’s information disclosure;
h) Assist in contact between parties with relevant interests;
i) Protect confidentiality of in accordance with regulations of law and the Company’s Charter;
k) Other rights and obligations prescribed by law and [the Company's Charter].
VIII. THE DIRECTOR/GENERAL DIRECTOR AND OTHER EXECUTIVES
Article 33. Organization of the management apparatus
The Company’s management apparatus shall be responsible to the Board of Directors, supervised and controlled by the Board of Directors in the Company’s everyday business operation. The Company has a Director/General Director, Deputy Directors/Deputy General Directors, a Chief Accountant and [persons designated by the Board of Directors to hold other managerial positions]. The designation and dismissal of these persons are subject to ratification by resolutions or decisions of the Board of Directors.
Article 34. The Company’s executives
1. The Company’s executives include the Director/General Director, Deputy Director/Deputy General Director, Chief Accountant and [other executives prescribed by the Company's Charter];
2. When requested by the Director/General Director and approved by the Board of Directors, the Company may recruit other executives with the quantity and qualifications conformable the organizational structure and management regulations of the Company prescribed by the Board of Directors. Executives shall assist the Company in achieving its organizational and business objectives.
3. The Director/General Director shall receive salaries and bonuses, which are decided by the Board of Directors.
4. Salaries of executives shall be recorded as the Company’s operating costs in accordance with regulations of law on corporate income tax, presented in a separate section of the Company’s annual financial statement and reported at the annual GMS.
Article 35. Designation, dismissal, duties and entitlements of the Director/General Director
1. The Board of Directors shall designate 01 member of the Board of Directors or hires a person as the Director/General Director.
2. The Director/General Director shall administer the Company’ everyday business operation; be supervised by the Board of Directors; is responsible to the Board of Directors and the law for the performance of his/her rights and obligations.
3. The term of office of the Director/General Director shall not exceed 05 years without term limit. The Director/General Director shall satisfy the requirements prescribed by law and [the Company’s Charter].
4. The Director/General Director has the following rights and obligations:
a) Decide the issues relevant to the Company’s everyday business operation outside the jurisdiction of the Board of Directors;
b) Organize the implementation of resolutions and decisions of the Board of Directors;
c) Organize the implementation of the Company’s business plans and investment plans;
d) Propose organizational structure and internal administration regulations of the Company;
dd) Designate, dismiss and discharge managerial positions in the Company, except for those within the jurisdiction of the Board of Directors;
e) Decide the salaries and other benefits of the Company’s employees, including the managers designated by the Director/General Director;
g) Recruit employees;:
h) Propose dividend payment plan or business loss settlement;
i) Other rights and obligations prescribed by law and [the Company's Charter, resolutions and decisions of the Board of Directors].
5. The Board of Directors may dismiss the Director/General Director if it is approved by the majority of members of the Board of Directors who have the right to vote and participate in the meeting, and designate a new Director/General Director.
IV. THE BOARD OF CONTROLLERS OR AUDIT COMMITTEE AFFILIATED TO THE BOARD OF DIRECTORS
[If the Company applies the model specified in Point a Clause 1 Article 137 of the Law on Enterprises, the Company shall establish a Board of Controllers in accordance with the Law on Enterprises and the Government’s Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities, and regulations of Article 36 to 41 of this Charter].
Article 36. Nomination and self-nomination of members of the Board of Controllers (Controllers)
1. The nomination and self-nomination of members of the Board of Controllers shall comply with Clause 1 and Clause 2 Article 25 of this Decree.
2. In case the number of nominated and self-nominated candidates is smaller than the minimum number specified in Clause 5 Article 115 of the Law on Enterprises, the incumbent Board of Controllers shall nominate more candidates or organize the nomination in accordance with [the Company's Charter] and administration regulations and operating regulations of the Board of Controllers. This must be announced before the GMS starts to vote for members of the Board of Controllers as prescribed by law.
Article 37. Composition of the Board of Controllers
1. The Board of Controllers has [... members] (03 – 05 members). The term of office of members of the Board of Controllers shall not exceed 05 years without term limit.
2. Members of the Board of Controllers shall satisfy the standards and conditions specified in Article 169 of the Law on Enterprises and the Company’s Charter and shall not:
a) Work in the Company’s accounting or finance department;
b) Be a member of employee of the independent accredited audit organization that is auditing the Company’s financial statements over the last 03 years.
3. A member of the Board of Controllers will be dismissed in the following cases:
a) He/she no longer fully satisfies the requirements specified in Clause 2 of this Article;
b) He/she hands in resignation letter which is accepted;
c) [Other cases prescribed by law and this Charter].
4. A member of the Board of Controllers will be discharged in the following cases:
a) He/she fails to fulfill the assigned tasks and duties;
b) He/she fails to perform his/her rights and obligations for 06 consecutive months, except in force majeure events;
c) He/she commits multiple or serious violations against obligations of members of the Board of Controllers prescribed by the Law on Enterprises and [the Company's Charter].
d) Other cases specified in the resolution of the GMS.
Article 38. Chief Controller
1. The Chief Controller shall be elected by the Board of Controllers among its members under the majority rule. More than half of the members of the Board of Controllers shall be residents of Vietnam. The Chief Controller shall have a bachelor’s degree or higher in economics, finance, accounting, audit, law, business administration or another major that is relevant to the enterprise’s operation [unless higher qualifications are required by the Company's Charter].
2. Rights and obligations of the Chief Controller:
a) Convene meetings of the Board of Controllers;
b) Request the Board of Directors, the Director/General Director and other executives to provide relevant information for reporting to the Board of Controllers;
c) Prepare and sign reports of the Board of Controllers after consulting with the Board of Directors for submission to the GMS.
Article 39. Rights and obligations of the Audit Committee
In addition to the rights and obligations in Article 170 of the Law on Enterprises and the Company’s Charter, the Board of Controllers also has the following rights and obligations:
1. Submit and request the GMS to approve the list of accredited audit organizations, which will audit the Company’s financial statements; choose the accredited audit organization that audits the Company’s operation; discharge accredited auditors where necessary.
2. Take responsibility to the shareholders for the supervision tasks performed by the Board of Controllers.
3. Supervise the Company’s finance, lawfulness of operation of members of the Board of Directors, the Director/General Director and other managers.
4. Cooperate with the Board of Directors, the Director/General Director and shareholders.
5. Send a written notice to the Board of Directors within 48 hours after discovery of violations against the law or the Company’s Charter by a member of the Board of Directors, General Director/Director or another executive of the Company, and request the violator to stop committing the violations and take remedial measures.
6. Formulate the Regulations on Operation of the Board of Controllers and submit them to the GMS for ratification.
7. Submit reports to the GMS in accordance with Article 290 of Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities.
8. Access the Company’s documents retained at its headquarters, branches and other locations; enter the working locations of the Company’s managers and employees during office hours.
9. Request the Board of Directors, its members, the Director/General Director and other managers to provide accurate, adequate and timely information and documents about the Company’s management and operation.
10. Other rights and obligations prescribed by law and [this Charter].
Article 40. Meetings of the Board of Controllers
1. The Board of Controllers shall have at least 02 meetings per year. Each meeting must be participated in by at least two thirds (2/3) of its members. Minutes of these meetings must be detailed, bear the signatures of the minute taker and participating members. All minutes of meetings of the Board of Controllers must be retained in order to attribute responsibility of each member.
2. The Board of Controllers is entitled to request members of the Board of Directors, THE Director/General Director and representatives of the accredited audit organization to participate in its meetings and clarify raised issues.
Article 41. Salaries, remunerations, bonuses and other benefits of members of the Board of Controllers
[Unless otherwise prescribed by the Company’s Charter], the salaries, remunerations, bonuses and other benefits of members of the Board of Controllers shall comply with the regulations below:
1. Members of the Board of Controllers shall receive salaries, remunerations, bonuses and other benefits under the decision of the GMS. The GMS shall decide the salaries, remunerations, bonuses and other benefits and annual budget of the Board of Controllers.
2. Members of the Board of Controllers shall the reasonable costs of accommodation, travel and independent counseling services reimbursed. The total costs must not exceed the annual budget of the Board of Controllers which has been approved by the GMS, unless otherwise decided by the GMS.
3. Salaries and operating costs of the Board of Controllers shall be recorded as the Company’s operating costs in accordance with regulations of law on corporate income tax, presented in a separate section of the Company’s annual financial statement.
[If the Company applies the model specified in Point b Clause 1 Article 137 of the Law on Enterprises, the Company shall establish an Audit Committee in accordance with the Law on Enterprises and the Government’s Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities, and regulations of Article 42 to 46 of this Charter].
Article 42. Nomination and self-nomination of members of the Audit Committee
1. The chairperson and other members of the Audit Committee shall be nominated by the Board of Directors and shall not executives of the Company.
2. The designation of the chairperson and other members of the Audit Committee is subject to approval by the Board of Directors during its meeting.
Article 43. Composition of the Audit Committee
1. The Audit Committee shall have at least 02 members. The chairperson of the Audit Committee shall be an independent member of the Board of Directors. Other members of the Audit Committee shall be non-executive members of the Board of Directors.
2. Members of the Audit Committee shall have knowledge about accounting, audit, law and the Company’ operation, and must not:
a) Work in the Company’s accounting or finance department;
b) Be a member of employee of the accredited audit organization that is auditing the Company’s financial statements over the last 03 years.
3. The chairperson of the Audit Committee shall have a bachelor’s degree or higher in economics, finance, accounting, audit, law or business administration unless [higher qualifications are required by the Company's Charter].
Article 44. Rights and obligations of the Audit Committee
In addition to the rights and obligations in Article 161 of the Law on Enterprises and the Company’s Charter, the Audit Committee also has the following rights and obligations:
1. Access documents about the Company’s operation; discuss with other members of the Board of Directors, the Director/General Director, chief accountant and other managers to collect information serving the operation of the Audit Committee.
2. Request representatives of the accredited audit organization to participate in meetings of the Audit Committee to provide explanation for issues relevant to the audited financial statements.
3. Use external legal counseling, accounting and other counseling services where necessary.
4. Formulate policies on detection and management or risks and submit them to Board of Directors; propose solutions for the risks that occur during the Company’s operation.
5. Submit a written report to the Board of Directors whenever a member of the Board of Directors, the Director/General Director or another manager fails to fulfill their responsibilities prescribed in the Law on Enterprises and the Company's Charter.
6. Formulate Audit Committee Operation Regulations and submit them to the Board of Directors for ratification.
Article 45. Meetings of the Audit Committee
1. The Audit Committee shall have at least 02 meetings per year. Minutes of these meetings must be detailed, bear the signatures of the minute taker and participating members.
2. The Audit Committee shall ratify its decisions by voting at meetings, questionnaire survey or other methods prescribed by [the Company's Charter or Audit Committee Operation Regulations]. Each member of the Audit Committee has one vote. Unless a higher ratio is prescribed by [the Company’s Charter or Audit Committee Operation Regulations], a decision of the Audit Committee shall be ratified if it is voted for by the majority of the participating members. In case of a tie, the chairperson of the Audit Committee shall have the casting vote.
Article 46. Reporting by independent members of the Board of Directors in the Audit Committee at the annual GMS
1. Independent members of the Board of Directors in the Audit Committee shall report during the annual GMS
2. Such a report shall have the following contents:
a) Remunerations, operating costs and other benefits of the Audit Committee and each of its members as prescribed in the Law on Enterprises and [the Company's Charter];
b) Summaries of meetings of the Audit Committee, its verdicts and proposals;
c) Results of supervision of the Company’s financial statements, finance and operation;
d) Evaluation of transactions between the Company, subsidiary companies and companies over 50% charter capital of which is held by the Company with members of the Board of Directors, the Director/General Director, other executives of the Company and their related persons; transactions between the Company with companies whose founders or managers are members of the Board of Directors, the Director/General Director or executives over the last 03 years from the transaction date;
dd) Evaluation of the Company’s internal control and risk management system;
e) Performance of the Board of Directors, the General Director/Director and other executives of the Company;
g) Cooperation between the Audit Committee with the Board of Directors, the Director/General Director and shareholders;
h) [Other contents (if any)].
X. Responsibility of members of the Board of Directors, members of the Board of Controllers, the Director/General Director and other executives
Members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other executives shall fulfill their duties as members of subcommittees of the Board of Directors in a truthful and prudent manner to serve the interests of the Company.
Article 47. Responsibility for honesty and prevention of conflict of interest
1. Members of the Board of Controllers, members of the Board of Controllers, Director/General Director and other managers shall disclose their relevant interests in accordance with the Law on Enterprises and relevant legislative documents.
2. Members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other managers and their related persons may only use the information obtained from their positions to serve the interests of the Company.
3. Members of the Board of Controllers, members of the Board of Controllers, the Director/General Director and other managers shall send written notices to the Board of Directors and the Board of Controllers of the transactions between the Company, subsidiary companies, companies over 50% of charter capital of which is held by the Company with them or with their related persons as prescribed by law. The Company shall disclose information about the transactions that are approved by the GMS or the Board of Directors in accordance with regulations of the Law on Securities on information disclosure.
4. Members of the Board of Controllers must not vote on the transactions that bring interests to themselves or their related persons as prescribed by the Law on Enterprises and [the Company's Charter].
5. Members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other managers and their related persons must not use or reveal internal information for carrying out relevant transactions.
6. Transactions between the Company with one or some members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other executives and their related persons shall not be invalidated in the following cases:
a) For transactions whose value do not exceed [...%] of the total assets written in the latest financial statement, important contents of the contracts or transactions as well as relationships and interests of members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other executives have been reported to the Board of Directors and are approved by the majority of the members of the Board of Directors without relevant interests;
a) For transactions whose separate value or cumulative value over 12 months from the day the first transaction is conducted exceed [...%] of the total assets written in the latest financial statement, important contents of the contracts or transactions as well as relationships and interests of members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other executives have been disclosed to the shareholders and are approved by the GMS by votes of shareholders without relevant interests.
Article 48. Responsibility for damage and compensation
1. Any members of the Board of Directors, members of the Board of Controllers, the Director/General Director or other executives that fail to fulfill their duties in a truthful and prudent manner shall be held responsible for their violations.
2. The Company shall pay compensation for the persons who have become or may become a related party in the complaints, lawsuits, charges (including administrative and civil cases other than lawsuits filed by the Company) if they were or are members of the Board of Directors, members of the Board of Controllers, Director/General Director, other executives, employees or authorized representatives of the Company who performed or are performing their duties as authorized by the Company, act in a lawful, honest and prudent manner for the Company’s interests, and there is no evidence that they fail to fulfill their duties.
3. [Costs of compensation include judgment costs, fines, amounts payable in reality (including lawyer payment) during the settlement of these cases. The Company may purchase insurance for these people in order to avoid this liability].
XI. RIGHTS TO ACCESS THE COMPANY’S DOCUMENTS AND RECORDS
Article 49. Rights to access the Company’s documents and records
1. Ordinary shareholders have the rights to access the Company’s documents and records. To be specific:
a) Ordinary shareholders are entitled to access, examine and extract information about names and addresses of voting shareholders; request rectification of incorrect information about themselves; examine, access, extract or copy the Company’s Charter, minutes and resolutions of the GMS;
b) The shareholder or group of shareholders that hold at least [05%] of ordinary shares [or a smaller ratio prescribed by the Company’s Charter] is entitled to examine, access extract the minutes, resolutions and decisions of the Board of Directors, biannual and annual financial statements, reports of the Board of Controllers, contracts and transactions subject to approval by the Board of Directors and other documents, except documents relevant to the Company’s trade secrets.
2. In case the authorized representatives of the aforementioned shareholder or group of shareholders request access to documents and records, the request shall be enclosed with the authorization letter (or its notarized copy) issued by the shareholder or group of shareholders.
3. Members of the Board of Directors, members of the Board of Controllers, the Director/General Director and other executives are entitled to access the Company’s shareholder register, list of shareholders, other documents and records for the purposes that are relevant to their positions, provided this information is kept confidential.
4. The Company shall retain this Charter and its revising documents, the Certificate of Enterprise Registration, regulations and documents proving the ownership of assts, resolutions of the GMS and the Board of Directors, minutes of the GMS and the Board of Directors, reports of the Board of Directors and the Board of Controllers, annual financial statements, accounting records and other documents prescribed by law at its headquarters or another location, provided the shareholders and business registration authorities are informed of the location where these documents are retained.
5. The Company’s Charter shall be posted on the Company’s website.
XII. Employees and Trade Union
Article 50. Employees and Trade Union
1. The Director/General Director shall formulate a plan for the Board of Directors to approve issues relevant to recruitment, resignation, salaries, social insurance, benefits, discipline and commendation of employees and executives.
2. The Director/General Director shall formulate a plan for the Board of Directors to approve issues relevant to the Company’s relationships with trade union organizations according to best standards, practice and management policies, the practice and policies specified in this Charter, the Company’s regulations and applicable laws.
XIII. DISTRIBUTION OF PROFITS
Article 51. Distribution of profits
1. The GMS shall decide the dividends and method of annual dividend payment from the Company’s retained profit.
2. The Company shall not pay interest on dividends or the payments relevant to a certain type of shares.
3. The Board of Directors may request the GMS to decide payment of all or part of dividends in shares, and the Board of Directors shall execute this decision.
4. In case the dividends or other amounts are relevant to a type of shares are paid in cash, the Company shall pay them in VND. Payment may be carried out directly or through banks on the basis of detailed information about bank accounts provided by the shareholders. The Company is not responsible if a shareholder does not receive money after the Company has transferred money according to the information provided by that shareholder. Dividends of shares listed/registered on other Stock Exchanges may be paid via securities companies or VSDCC.
5. Pursuant to the Law on Enterprises and the Law on Securities, the Board of Directors shall ratify the resolution or decision which specifies the shareholder list closing date. Registered shareholders or holders of other securities are entitled to receive dividends in cash or shares, notice and other documents.
6. Other issues relevant to profit distribution prescribed by law.
XIV. BANK ACCOUNTS, FISCAL YEARS AND ACCOUNTING
Article 52. Bank accounts
1. The Company shall open accounts at Vietnamese banks or foreign bank branches that are permitted to operate in Vietnam.
2. Where necessary and if permitted by competent authorities, the Company may open foreign bank accounts in accordance with regulations of law.
3. All payments and accounting transactions of the Company shall be carried out through the Company’s VND or foreign currency bank accounts.
Article 53. Fiscal year
The Company’s fiscal year begins on ... and ends on ... every year. The first fiscal year begins on the date of issuance of the Certificate of Enterprise Registration and ends on ...
Article 54. Accounting
1. The Company shall apply corporate accounting regulations or special accounting regulations promulgated and approved by competent authorities.
2. The Company’s accounting records shall be written in Vietnamese and retained in accordance with accounting laws and relevant laws. These records shall be accurate, up to date, systematic, and able to prove and explain the Company’s transactions.
3. The accounting currency shall be VND. If the Company’s transactions primarily use a foreign currency, the Company may use it as accounting currency, take legal responsibility and send a notice to its supervisory tax authority.
XV. FINANCIAL STATEMENTS, ANNUAL REPORTS AND RESPONSIBILITY FOR INFORMATION DISCLOSURE
Article 55. Annual, half-year and quarterly financial statements
1. The Company shall prepare annual financial statements, which have to be audited as prescribed by law. The Company shall disclose the audited annual financial statements in accordance with regulations of law on disclosing information on the securities market and submit them to competent authorities.
2. The annual financial statements shall have adequate contents, appendices and descriptions prescribed by corporate accounting laws. Annual financial statements shall truthfully and objectively reflect the Company’s operation.
3. The Company shall prepare and disclose examined biannual financial statements and quarterly financial statements in accordance with regulations of law on disclosing information on the securities market and submit them to competent authorities.
Article 56. Annual reports
The Company shall prepare and publish annual reports in accordance with regulations of law on securities and the securities market.
XVI. AUDIT
Article 57. Audit
1. The GMS shall appoint an independent audit company or authorize the Board of Directors to select one on the list of independent audit companies, which will audit the Company’s financial statements of the next year under agreements with the Board of Directors.
2. Audit reports shall be enclosed with the Company’s annual financial statements.
3. Independent auditors that audit the Company’s financial statements are entitled to participate in the GMS, receive notices and information relevant to the GMS, comment at the GMS on the issues relevant to the audit of the Company’s financial statements.
XVII. THE COMPANY’S SEALS
Article 58. The Company’s seals
1. Seals include physical seals and digital signatures prescribed by regulations of law on electronic transactions.
2. The Board of Directors shall decide the type, quantity, form and content of the seals of the Company, its branches and representative offices (if any).
3. The Board of Directors and the General Director/Director shall use and manage the seals in accordance with applicable regulations of law/
XVIII. DISSOLUTION OF THE COMPANY
Article 59. Dissolution of the Company
1. The Company can be dissolved in the following cases:
a) The operating period specified in the Company's Charter expires without a decision on extension;
b) The dissolution is decided under a resolution or decision of the GMS;
b) The Certificate of Enterprise Registration is revoked, unless otherwise prescribed by the Law on Tax Administration;
d) Other cases prescribed by law.
2. Dissolution of the Company ahead of schedule (including extensions) shall be decided by the GMS and carried out by the Board of Directors. Such dissolution decision shall be announced and subject to approval by competent authorities (if mandatory) as per regulations.
Article 60. Extension of operating period
1. The Board of Directors shall convene the GMS at least [7 months] before the expiry of the operating period for shareholders to vote on extension of the operating period of the Company at the request of the Board of Directors.
2. The operating period shall be extended if the extension is voted for by a number of shareholders that represent at least [65%] of the votes of all participating shareholders.
Article 61. Liquidation
1. At least [06 months] before the expiry of the Company’s operating period or after a decision on dissolution of the Company is issued, the Board of Directors shall establish a liquidation board, which consists of 03 members, 02 of whom shall be appointed by the GMS and 01 by the Board of Directors from 01 independent audit company. The liquidation board shall formulate its own operating regulations. Members of the liquidation board may be selected from the Company’s employees or independent experts. Priority shall be given to payment of liquidation costs over other debts of the Company.
2. The liquidation board shall inform the business registration authority of its establishment date and commencement date. From that date, the liquidation board shall perform all liquidation tasks on behalf of the Company in the court and administrative authorities.
3. Revenues from the liquidation shall be used in the following order:
a) Liquidation costs;
b) Unpaid salaries, severance pay, social insurance and other benefits of employees according to the collective bargaining agreement and employment contracts;
c) Tax debts;
d) Other debts of the Company;
dd) The remainder after payment of the debts specified in (a) to (d) shall be divided among the shareholders. Priority shall be given to preference shares.
XIX. SETTLEMENT OF INTERNAL DISPUTES
Article 62. Settlement of internal disputes
1. In case of disputes and complaints relevant to the Company’s operation, rights and obligations of shareholders prescribed by the Law on Enterprises, the Company's Charter, other laws or agreements between:
a) The shareholders and the Company;
b) The shareholders and the Board of Directors, the Board of Controllers, the Director/General Director or other executives;
The parties shall try to settle these disputes through negotiation and mediation. Except for disputes that involve the Board of Directors or the President of the Board of Directors, the President of the Board of Directors shall preside over the settlement of disputes and request each party to provide information about their dispute within [... working days] from the occurrence of the dispute. In case the dispute involves the Board of Directors or the President of the Board of Directors, either party is entitled to request [...] to appoint an independent expert as a mediator.
2. In case the dispute cannot be settled through mediation within [06 weeks] or the mediator’s decision is not accepted by the parties, either party may bring the case to court or arbitration.
3. The parties shall pay the cost of negotiation and mediation. Cost of proceedings at court shall be paid under the court’s judgment.
XX. REVISING THE COMPANY'S CHARTER
Article 63. The Company’s Charter
1. Revisions to this Charter are subject to approval by the GMS.
2. In case regulations of law that are relevant to the Company’s operation are not mentioned in this Charter or new regulations of law contradict the contents of this Charter, the regulations of law shall be applied to regulate the Company’s operation.
XXI. EFFECTIVE DATE
Article 64. Effective date
1. This Charter has [21 Sections, 64 Articles] and is fully ratified by the GMS of ... JSC on ... at ... .
2. This Charter shall be made into ... copies with equal value and retained at the Company’s headquarters.
3. This is the only and official Charter of the Company.
4. Copies and extracts of this Charter shall be effective when they bear the signature of the President of the Board of Directors or at least half of the members of the Board of Directors.
Full names and signatures of the legal representatives or founding shareholders or their authorized representatives.
APPENDIX II
(Enclosed with Circular No. 116/2020/TT-BTC dated December 31, 2020 of the Minister of Finance)
NAME OF COMPANY | SOCIALIST REPUBLIC OF VIETNAM |
| [location, date] |
MODEL INTERNAL REGULATIONS ON COMPANY ADMINISTRATION
Pursuant to the Law on Securities dated November 26, 2019;
Pursuant to the Law on Enterprises dated June 17, 2020;
Pursuant to the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
Pursuant to the Circular No. 116/2020/TT-BTC dated December 31, 2020 of the Minister of Finance providing guidelines for implementation of some Articles on administration o public companies in the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
Pursuant to the Charter of ... JSC.
Pursuant to Resolution No. ... dated ... of General Meeting of Shareholders.
The Board of Directors promulgates the Internal Regulations on Administration of .... JSC.
The Internal Regulations on Administration of .... JSC has the contents below:
Article 1. Scope and regulated entities
1. Scope: the Internal Regulations on Company Administration provide for the roles, rights and obligations of the General Meeting of Shareholders, the Board of Directors, the Director (General Director), procedures for conducting General Meetings of Shareholders; nomination, self-nomination, dismissal and discharge of members of the Board of Directors, Board of Controllers, Director/General Director and other activities prescribed by the Company's Charter and applicable regulations of law.
2. These Regulations are applied to members of the Board of Directors, Board of Controllers, Director/General Director and related persons.
Article 2. General Meeting of Shareholders
1. Roles, rights and obligations of the GMS.
2. Regulations on procedures for the GMS to ratify resolutions by vote include:
a) Authority to convene the GMS.
b) Compilation of the list of shareholders having the right to participate in the meeting;
c) Announcing the list of shareholders having the right to participate in the meeting;
d) Announce the convening of the GMS;
dd) The agenda of the GMS (the person responsible for preparing the agenda; inclusion of shareholders’ proposals in the meeting agenda);
e) Authorization of representatives to participate in the GMS;
g) How to register participation in the GMS;
h) Conditions for carrying out the GMS;
i) Method for ratification of resolutions of the GMS;
k) Vote casting method;
l) Vote counting method;
m) Conditions for ratification of a resolution;
n) Method for announcing vote counting result;
o) How to express dissents against resolutions of the GMS (according to Article 132 of the Law on Enterprises);
p) Preparation of the GMS minutes;
q) Announcing the resolution of the GMS.
3. Regulations on procedures for the GMS to ratify resolutions by questionnaire survey include:
a) Cases in which questionnaire survey is not permitted;
b) Procedures for the GMS to ratify a resolution by questionnaire survey.
4. Procedures for the GMS to ratify resolutions through online meetings (including procedures for holding meetings and voting) include:
a) Announcement of the online GMS;
b) How to register participation in the online GMS;
c) Authorization of representatives to participate in the online GMS;
d) Conditions for carrying out the GMS;
dd) Method for ratification of resolutions of during the online GMS;
e) Online voting method;
g) Online vote counting method;
h) Announcement of the vote counting result;
i) Preparation of the GMS minutes;
k) Announcement of the resolution of the GMS.
5. Procedures for the GMS to ratify resolutions through both face-to-face and online meetings (including procedures for holding meetings and voting) include:
a) Announcement of the GMS;
b) How to register participation in the GMS;
c) Authorization of representatives to participate in the GMS;
d) Conditions for carrying out the GMS;
dd) Method for ratification of resolutions of the GMS;
e) Vote casting method;
g) Vote counting method;
h) Announcement of the vote counting result;
i) Preparation of the GMS minutes;
k) Announcement of the resolution of the GMS.
6. [Other forms of holding the GMS].
Article 3. The Board of Directors
1. Roles, rights and obligations of the Board of Directors, responsibilities of members of the Board of Directors (including the right to be provided with information of members of the Board of Directors).
2. Regulations on nomination, self-nomination, election, dismissal of members of the Board of Directors include:
a) Term of office and quantity of members of the Board of Directors;
b) Plan, requirements and conditions to be satisfied by members of the Board of Directors;
c) Nomination and self-nomination of members of the Board of Directors;
d) Method for election of members of the Board of Directors
dd) Cases of dismissal and addition of members of the Board of Directors;
e) Announcement of election and dismissal of members of the Board of Directors;
g) How to nominate candidates for members of the Board of Directors;
h) Election and dismissal of the President of the Board of Directors.
3. Remunerations and other benefits of members of the Board of Directors.
4. Regulations on procedures for holding meetings of the Board of Directors include:
a) Minimum numbers of meetings per month/quarter/year;
b) Cases in which an ad hoc meeting of the Board of Directors must be convened;
c) Announcement of the meeting of the Board of Directors (time, location, agenda, issues that need discussing and resolving);
d) Rights of members of the Board of Controllers to participate in meetings of the Board of Directors;
dd) Conditions for carrying out meetings of the Board of Directors;
e) Voting method;
g) Method for ratification of resolutions of the Board of Directors;
h) Authorization of other persons to participate in meetings of the Board of Directors;
i) Preparation of the GMS minutes;
k) Cases in which the chair and/or secretary refuse to sign minutes of meetings of the Board of Directors;
l) Announcement of resolutions and decisions of the Board of Directors.
5. Regulations on the Audit Committee affiliated to the Board of Directors (of a joint stock company prescribed by Point b Clause 1 Article 137 of the Law on Enterprises) include:
a) Rights and obligations of the Audit Committee;
b) Nomination and self-nomination of members of the Audit Committee;
- Term of office, quantity, standards and structure of the Audit Committee;
- Nomination and self-nomination of members of the Audit Committee;
c) Operations of the Audit Committee.
6. Sub-committees of the Board of Directors (if any)
Regulations on the establishment and operation of sub-committees of Board of Directors:
a) Roles, responsibilities, authority of the sub-committees and each member therein;
b) Nomination, self-nomination, election, dismissal of members of sub-committees the Board of Directors:
- Term of office, quantity, standards and structure of sub-committees the Board of Directors;
- Methods for self-nomination, election, dismissal of members of sub-committees the Board of Directors.
c) Operation of sub-committees of the Board of Directors.
7. Regulations on selection, designation, dismissal of the person in charge of company administration include:
a) Standards to be satisfied by the person in charge of company administration;
b) Designation of the person in charge of company administration;
c) Cases in which the person in charge of company administration is dismissed;
d) Announcement of the designation and dismissal of the person in charge of company administration;
dd) Rights and obligations of the person in charge of company administration.
Article 4. The Board of Controllers
1. Roles, rights and obligations of the Board of Controllers, responsibilities of members thereof.
2. Regulations on term of office, quantity, composition, structure of members of the Board of Controllers (of a joint stock company applying the operating model prescribed in Point a Clause 1 Article 137 of the Law on Enterprises):
a) Term of office, quantity, composition and structure of members of the Board of Controllers;
b) Requirements to be satisfied by members of the Board of Controllers;
c) Nomination and self-nomination of members of the Board of Controllers;
d) Method for election of members of the Board of Controllers;
dd) Cases of dismissal of members of the Board of Controllers;
e) Announcement of election and dismissal of members of the Board of Controllers;
g) Salaries and other benefits of members of the Board of Controllers.
Article 5. Director/General Director
1. Roles, responsibilities, rights and obligations of the Director (General Director);
2. Designation, dismissal, conclusion and termination of the contract with the Director (General Director)
a) Term of office of, requirements to be satisfied by the Director (General Director);
b) Nomination, self-nomination, dismissal of the Director (General Director);
c) Designation conclusion and termination of the contract with the Director (General Director);
d) Dismissal, termination of the contract with the Director (General Director);
dd) Announcement of designation, dismissal, conclusion and termination of the contract with the Director (General Director);
e) Salary and other benefits of the Director (General Director).
Article 6. Other activities
1. Regulations on cooperation between the Board of Directors, the Board of Controllers and the Director (General Director) include:
a) Procedures for convening, announcing meetings, taking minutes, announcing results of meetings between the Board of Directors, the Board of Controllers and the Director (General Director);
b) Notification of resolutions and decisions of the Board of Directors to the Board of Controllers;
c) Notification of resolutions and decisions of the Board of Directors to the Director (General Director);
d) Cases in which the Director (General Director) and the Board of Controllers demand a meeting of the Board of Directors be convened, and issues that need consultation with the Board of Directors;
dd) Reports of the Director (General Director) to the Board of Directors on his/her performance of assigned duties and authority;
e) Review of the implementation of resolutions and resolution of other issues authorized by the Board of Directors to the Director (General Director);
g) The issues to be reported, notified by the Director (General Director) and method for notifying the Board of Directors and Board of Controllers;
h) Cooperation in control, administration and supervision among members of the Board of Directors, the Board of Controllers and the Director (General Director) according to their specific duties.
2. Regulations on annual assessment, commendation and discipline of members of the Board of Directors, the Board of Controllers, the Director (General Director) and other executives;
3. Other issues (if any).
Article 7. Effect
The Internal Regulations on Administration of ... JSC comes into force from [dd/mm/yyyy]
| ON BEHALF OF PRESIDENT OF THE BOARD OF DIRECTORS |
APPENDIX III
(Enclosed with Circular No. 116/2020/TT-BTC dated December 31, 2020 of the Minister of Finance)
NAME OF COMPANY | SOCIALIST REPUBLIC OF VIETNAM |
| [location, date] |
MODEL REGULATIONS ON OPERATION OF THE BOARD OF DIRECTORS
Pursuant to the Law on Securities dated November 26, 2019;
Pursuant to the Law on Enterprises dated June 17, 2020;
Pursuant to the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
Pursuant to the Circular No. 116/2020/TT-BTC dated December 31, 2020 of the Minister of Finance providing guidelines for implementation of some Articles on administration o public companies in the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
Pursuant to the Charter of ... JSC.
Pursuant to Resolution No. ... dated ... of General Meeting of Shareholders.
The Board of Directors promulgates the regulations on operation of the Board of Directors of .... JSC.
Chapter I
GENERAL PROVISIONS
Article 1. Scope and regulated entities
1. Scope: the Regulations on Operation of the Board of Directors provide for the organizational structure, operating principles, rights and obligations of the Board of Directors and its members in order to ensure that its operation is conformable with the Law on Enterprises, the Company’s Charter and relevant laws.
2. Regulated entity: Board of Directors and its members.
Article 2. Operating principles
1. The Board of Directors shall work on the collective principle. Each member of the Board of Directors shall be responsible for the performance of his/her own tasks and be jointly responsible to the GMS and the law for the resolutions and decisions of the Board of Directors regarding development of the Company.
2. The Board of Directors shall assign the Director/General Director to organize the implementation of the resolutions and decisions of the Board of Directors.
Chapter II
MEMBERS OF THE BOARD OF DIRECTORS
Article 3. Rights and obligations of members of the Board of Directors
1. Members of the Board of Directors have all the rights specified in the Law on Securities, relevant laws and the Company’s Charter, including the right to be provided with information and documents about the finance and business performance of the Company and its units.
2. Members of the Board of Directors have the obligations specified in the Company’s Charter and the following obligations:
a) Perform their duties in an honest and prudent manner for the best interests of the Company and its shareholders;
b) Attend all meetings of the Board of Directors and comment on the raised issues;
c) Promptly and fully inform the Board of Directors of the remunerations paid by the subsidiary companies, associate companies and other organizations;
d) Inform the Board of Directors during the nearest meeting of transactions between the Company, subsidiary companies and other companies over 50% charter capital of which is held by the Company with members of the Board of Directors and their related persons; transactions between the Company with companies whose founders or managers are members of the Board of Directors over the last 03 years from the transaction date;
dd) Disclose information when trading the Company’s shares as prescribed by law.
3. Independent members of the Board of Directors shall prepare reports on performance of the Board of Directors.
Article 4. Rights to be provided with information of members of the Board of Directors
1. Members of the Board of Directors have all the rights to request the Director/General Director, Deputy Director/Deputy General Director, other managers of the Company to provide information and documents about the finance and business performance of the Company and its units.
2. The requested managers shall fully and accurately provide the information and documents requested by the members of the Board of Directors following the procedures specified in the following Charter.
Article 5. Term of office and quantity of members of the Board of Directors
1. The Board of Directors has ... members (03 to 11). The Company's Charter shall specify the number of members of the Board of Directors.
2. The term of office of a member of the Board of Directors shall not exceed 05 years and has no term limit. An individual may only be elected as independent member of the Board of Directors of a company for up to 02 consecutive terms.
3. In case the term of office all members of the Board of Directors end at the same time, all of them will remain members of the Board of Directors until new members are elected and take over the work, unless otherwise prescribed by the Company’s Charter.
4. The Company's Charter shall specify the number, rights, obligations, organization and cooperation of independent members of Board of Directors.
Article 6. Requirements to be satisfied by members of the Board of Directors
1. A member of the Board of Directors shall satisfy the following requirements:
a) He/she is not any of the persons specified in Clause 2 Article 17 of the Law on Enterprises;
b) He/she has qualifications and experience of business administration or in same fields or business lines of the Company. A member is not necessarily a shareholder of the Company, unless otherwise prescribed by the Company’s Charter;
c) A member of the Board of Directors of may concurrently hold the position of member of Board of Directors of another company;
d) Members of the Board of Directors of state-owned enterprises prescribed in Point b Clause 1 Article 88 of the Law on Enterprises and subsidiary companies of state-owned enterprise according to Clause 1 Article 88 of the Law on Enterprises must not be relatives of the Director/General Director, other managers of the Company and the persons having the power to designate managers of the parent company;
dd) [He/she satisfy other requirements specified in the Company’s Charter].
2. An independent member of the Board of Directors prescribed in Point b Clause 1 Article 137 of the Law on Enterprises shall satisfy the following requirements:
a) He/she is not working for the Company, parent company or subsidiary companies of the Company; he/she is not a person who used to work for the Company, parent company or subsidiary companies of the Company over the last 03 years;
b) He/she is not a person who is receiving salary or remuneration from the Company, except the allowances to which members of the Board of Directors are entitled as per regulations;
c) His/her spouse, biological parents, adoptive parents, biological children, adopted children, siblings are not major shareholders of the Company; are not managers of the Company or its subsidiary companies;
d) He/she does not directly or indirectly hold at least 01% of the total voting shares of the Company;
dd) He/she does not hold the position of member of the Board of Directors or Board of Controllers of the Company over the last 05 years, unless he/she is designated for 02 consecutive terms;
e) [Other requirements specified in the Company’s Charter].
3. The independent member of the Board of Directors shall inform the Board of Directors when he/she no longer fully satisfies the requirements specified in Clause 2 of this Article and is obviously no longer an independent member from the day on which such requirements are not fully satisfied. The Board of Directors shall report this during the nearest GMS or convene the GMS to elect or replace the independent member within 06 months from the day on which the notice is received from the disqualified member.
Article 7. President of the Board of Directors
1. The President of the Board of Directors shall be elected among the members of the Board of Directors by the Board of Directors, and dismissed by the Board of Directors.
2. The President of the Board of Directors must not concurrently hold the position of Director/General Director.
3. Rights and obligations of the President of the Board of Directors:
a) Formulate operating plans and programs of the Board of Directors;
b) Prepare the agenda and documents of meetings; convene and chair meetings of the Board of Directors;
c) Organize the ratification of resolutions and decisions of the Board of Directors;
d) Supervise the process of implementation of resolutions and decisions of the Board of Directors;
dd) Chair the GMS;
e) Other rights and obligations prescribed by the Law on Enterprises and [the Company’s Charter].
4. In case the President of the Board of Directors submits a resignation letter or is dismissed, the Board of Directors shall elect a new President within [10 days] from the resignation or dismissal date. In case the President of the Board of Directors is not present or is not able to perform his duties, he/she shall authorize another member in writing to perform the rights and obligations of the President of the Board of Directors in accordance with the Company’s Charter. In case no one is authorized or the President of the Board of Directors is dead, missing, held in police custody, imprisoned, detained in a mandatory rehabilitation center or correctional institution, has fled the residence, has limited capacity or is incapacitated, has difficulties controlling his/her behaviors, is prohibited by the Court from holding certain positions or doing certain works, the remaining members shall elect one of them to hold the position of President of the Board of Directors under the majority rule until a new decision is issued by the Board of Directors.
5. Where necessary, the Board of Directors may assign a Company's secretary, who has the following rights and obligations:
a) Assist in convening the GMS; take minutes of meetings;
b) Assist members of the Board of Directors in performance of their rights and obligations;
c) Assist the Board of Directors in application and implementation of company administration rules;
d) Assist the Company in development of relationship with shareholders, protection of their lawful rights and interests; provision and disclosure of information, and completion of administrative procedures;
dd) Other rights and obligations prescribed by [the Company’s Charter].
Article 8. Dismissal, replacement and addition of members of the Board of Directors
1. A member of the Board of Directors will be dismissed by the GMS in the following cases:
a) He/she does not fully satisfy the requirements specified in Article 155 of the Law on Enterprises;
b) He/she hands in resignation letter which is accepted;
c) Other cases specified in the Company’s Charter.
2. A member of the Board of Directors will be discharged by the GMS in the following cases:
a) He/she fails to participate in activities of the Board of Directors for 06 consecutive months, except in force majeure events;
b) Other cases specified in the Company’s Charter.
3. Where necessary, the GMS may replace, dismiss and discharge members of the Board of Directors in cases other those specified in Clause 1 and Clause 2 of this Article.
4. The Board of Directors shall convene the GMS to elect additional members of the Board of Directors in the following cases:
a) The number of members of the Board of Directors decreases by more than one third of the number specified in the Company’s Charter, in which case the Board of Directors shall convene the GMS within 60 days from the said date;
b) The number of independent members of the Board of Directors falls below the minimum number specified in Point b Clause 1 Article 137 of the Law on Enterprises;
c) Except in the cases specified in Point a and Point b of this Clause, the GMS shall elect new members to replace those who have been dismissed or discharged in the latest meeting.
Article 9. Method for election, dismissal and discharge of members of the Board of Directors
1. The shareholder or group of shareholders that holds at least [10%] of total ordinary shares or [a smaller amount specified in the Company’s Charter] is entitled to nominate candidates to the Board of Directors. Unless otherwise prescribed by [the Company’s Charter], candidates shall be nominated as follows:
a) The group of shareholders that nominate candidates to the Board of Directors must inform the participating shareholders of the meeting before the opening of the GMS;
b) Depending on the quantity of members of the Board of Directors, the shareholders or groups of shareholders prescribed I this Clause may nominate one or a number of candidates according to the decision of the GMS to the Board of Directors. In case the number of nominated candidates is smaller than the number specified in the decision of the GMS, the remaining candidates shall be nominated by Board of Directors and other shareholders.
2. In case the number of candidates is smaller than the minimum number specified in Clause 5 Article 115 of the Law on Enterprises, the incumbent Board of Directors shall nominate more candidates or organize the nomination in accordance with the Company’s Charter, company administration regulations and regulations on operation of the Board of Directors. This must be announced before the GMS starts to vote for members of the Board of Directors as prescribed by law.
3. [Unless otherwise prescribed by the Company’s Charter], the voting on members of Board of Directors shall be carried out by cumulative voting. This means each shareholder has a number of votes that is equivalent to their shares multiplied by the number of members of the Board of Directors, and may caste all or some of the votes for one or some candidates. Elected members of the Board of Directors shall be chosen according to number of votes received in descending order until the minimum number specified in the Company’s Charter is reached. In case 02 or more candidates for the last member of the Board of Directors receive the same number of votes, they will undergo another voting or be selected according to the voting regulations of the Company’s Charter.
4. The election, dismissal and discharge of members of the Board of Directors shall be decided by the GMS by voting.
Article 10. Announcement of election, dismissal and discharge of members of the Board of Directors
1. After candidates for members of the Board of Directors have been nominated, the Company shall publish information about these candidates at least 10 days before the opening date of the GMS on the Company’s website for the shareholders to study their profiles before voting. Each candidate shall prepare a written declaration that information about him/her is correct and to perform his/her duties in an honest and prudent manner for the best interests of the Company if he/she is given the position of member of the Board of Directors. Information about candidates includes:
a) Full name, date of birth;
b) Qualifications;
c) Work experience;
d) Other managerial positions (including positions in the Board of Directors of other companies);
dd) Interests relevant to the Company and the Company’s related parties;
e) Other information (if any) specified in the Company’s Charter;
g) The public company shall publish information about the companies in which the candidates are holding the position of members of the Board of Directors and other managerial positions and their interests in these companies (if any).
2. The results of election, dismissal and discharge of members of the Board of Directors shall be announced in accordance with regulations on information disclosure.
Chapter III
BOARD OF DIRECTORS
Article 11. Rights and obligations of the Board of Directors
1. The Board of Directors is a managerial body of the Company and has the full authority to make decisions, exercise rights and obligations of the Company in the name of the Company, except for the rights and obligations of the GMS.
2. Rights and obligations of the Board of Directors shall be prescribed by law, the Company’s Charter and the GMS. To be specific:
a) Decide the strategy, medium-term development and annual business plans of the Company;
b) Propose types of authorized shares and quantity of each type;
c) Decide the sale of unsold shares within the number of authorized shares of each type; decide other forms of raising additional capital;
D) Decide selling prices for shares and bonds of the Company;
dd) Decide repurchase of shares in accordance with Clause 1 and Clause 2 Article 133 of the Law on Enterprises;
e) Decide investment plans and investment projects within its jurisdictions and limits prescribed by law;
g) Decide solutions for market development, marketing and technology;
h) Approve contracts for purchase, sale, lending and other contracts and transactions that are worth at least [35%] of the total assets written the Company's latest financial statement, [unless another ratio or value is prescribed by the Company’s Charter], contracts and transactions within the jurisdiction of the GMS as prescribed in Point d Clause 2 Article 138, Clause 1 and Clause 3 Article 167 of the Law on Enterprises;
i) Elect, dismiss, discharge the President of the Board of Directors; designate, discharge, conclude and terminate contracts with the Director/General Director and other key managers prescribed by the Company’s Charter; decide salaries, remunerations, bonuses and other benefits of these managers; authorize representatives to participate in the Board of Members or GMS of other companies; decide their remunerations and other benefits;
k) Supervise the Director/General Director and other managers operating everyday business of the Company;
l) Decide the organizational structure, rules and regulations of the Company, establishment of subsidiary companies, branches, representative offices, capital contribution and purchase of shares of other enterprises;
m) Approve the agenda and documents serving the GMS; convene the GMS or collect comments for the GMS to ratify its resolutions;
n) Submit audited annual financial statements to the GMS;
o) Propose dividends; decide the deadlines and procedures for paying dividends or settling losses incurred during business operation;
p) Propose re-organization, dissolution of the Company; request bankruptcy of the Company;
q) Decide promulgation of operation regulations of the Board of Directors, internal regulations on company administration after they are ratified by the GMS; decide promulgation of operating regulations of the Audit Committee affiliated to the Board of Directors, regulations on information disclosure;
r) Other rights and obligations prescribed by the Law on Enterprises, the Law on Securities, other regulations of law and the Company’s Charter.
3. The Board of Directors shall ratify resolutions and decisions by voting at meetings, questionnaire survey or other methods prescribed by the Company's Charter. Each member of the Board of Directors has one vote.
4. In case a resolution or decision is ratified by the Board of Directors against regulations of law, resolution of the GMS or the Company’s Charter and thus causes damage to the Company, the members who vote for ratification of such resolution or decision shall be jointly responsible and pay compensation for the Company; the members who vote against the unconformable resolution or decision are exempt from responsibility. In this case, shareholders of the Company are entitled to request the court to suspend the unconformable resolution or decision.
Article 12. Duties and entitlements of the Board of Directors in approving and concluding transaction contracts
1. The Board of Directors is entitled to approve any contract and transaction that is worth less than 35% of total assets or that leads to a total transaction value of less than 35% of total assets over 12 months form the occurrence of the first transaction according to the latest financial statement, or a smaller ratio or value prescribed by the Company, between the Company and any of the following entities:
- Members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other managers and their related persons;
- Shareholders, authorized representatives of shareholders that hold over 10% of the Company’s ordinary shares and their related persons;
- Enterprises that are related to the entities specified in Clause 2 Article 164 of the Law on Enterprises.
2. The Company’s representatives shall send notices to members of the Board of Directors and the Board of Controllers when signing contracts and conducting transactions of the entities related to such contracts and transactions and enclose the draft contracts or transaction descriptions. The Board of Directors shall decide whether to approve the contract or transaction within 15 days from the receipt of the notice, unless another time limit is specified by the Company’s Charter. Members of the Board of Directors having interests related to the parties to the contract or transaction must not vote.
Article 13. Responsibility of the Board of Directors to convene extraordinary GMS
1. The Board of Directors shall convene an extraordinary GMS in the following cases:
a) It is considered necessary for the Company’s interests by the Board of Directors;
b) The remaining number of Board of Directors or Board of Controllers is smaller than the minimum number prescribed by law;
c) It is requested by the shareholder or group of shareholders prescribed in Clause 2 Article 115 of the Law on Enterprises; the request shall be made in writing, specify the reasons for convening such a meeting, and bear signatures of relevant shareholders. The written request may be made into multiple copies with signatures of relevant shareholders;
d) It is requested by the Board of Controllers;
dd. Other cases prescribed by law and the Company’s Charter.
2. Convening the extraordinary GMS
[Unless otherwise prescribed by the Company’s Charter], the Board of Directors shall convene the GMS within [30] days from the day on which the number of members of the Board of Directors, independent members of the Board of Directors or members of the Board of Controllers falls below the minimum number specified in the Company’s Charter, or the date of request mentioned in Point c and Point d Clause 1 of this Article;
3. The person who convenes the GMS shall perform the following tasks:
a) Compile a list of shareholders having the right to participate in the meeting;
b) Provide information and settle complaints relevant to the list of shareholders;
c) Prepare the meeting agenda and contents;
d) Prepare meeting documents;
dd) Draft the resolution of the GMS according to the meeting contents; compile a list of candidates and their details in case of election of members of the Board of Directors and the Board of Controllers;
e) Determine the meeting time and location;
g) Send invitations to the shareholders having the right to participate in the meeting in accordance with the Law on Enterprises;
h) Other tasks serving the meeting.
Article 14. Subcommittees of the Board of Directors
1. The Board of Directors may establish subcommittees that will take charge of development policies, personnel, salaries and bonuses, internal audit, risk management. The quantity of members of each subcommittee shall be decided by the Board of Directors with at least [03 persons] that are members of the Board of Directors and external members. [Independent members of the Board of Directors/non-executive members of the Board of Directors] shall make up a majority of the subcommittee and one of these members shall be designated as the chief of the subcommittee under a decision of the Board of Directors. The subcommittees shall operate in accordance with regulations of the Board of Directors. A subcommittee's resolution is only effective when it is voted for by the majority of its members during its meetings.
2. The implementation of decisions of the Board of Directors or its subcommittees shall be conformable with applicable regulations of law, the Company’s Charter and company administration regulations.
Chapter IV
MEETINGS OF THE BOARD OF DIRECTORS
Article 15. Meetings of the Board of Directors
1. The President of the Board of Directors shall be elected during the first meeting of the Board of Directors within 07 working days after the same Board of Directors is elected. This meeting shall be convened and chaired by the member that receives the most votes. In case of a tie, the members shall vote under the majority rule to choose 01 person to convene the Board of Directors.
2. The Board of Directors shall have at least 01 meeting per quarter and may have ad hoc meetings.
3. The President of the Board of Directors shall convene a meeting of the Board of Directors in the following cases:
a) The meeting is requested by the Board of Controllers or independent members of the Board of Directors;
b) The meeting is requested by the Director/General Director or at least 05 more managers;
c) The meeting is requested by at least 02 members of the Board of Directors;
d) [Other cases prescribed by the Company’s Charter].
4. The request for meeting mentioned in Clause 3 must be made in writing, specify the purposes, issues that need discussing and deciding by the Board of Directors.
5. The President of the Board of Directors shall convene the Board of Directors within 07 working days from the receipt of the request mentioned in Clause 3 of this Article. Otherwise, the President of the Board of Directors shall be responsible for the damage incurred by the Company; the requester is entitled to convene the meeting instead of the President of the Board of Directors.
6. The President of the Board of Directors or the person who convenes the meeting of the Board of Directors shall send invitations at least [03 working days] before the meeting [unless otherwise prescribed by the Company’s Charter]. The invitation shall specify the meeting time, location, agenda, issues that need discussing and deciding. The invitation shall be enclosed with documents to be used at the meeting and votes.
The invitations to the meeting of the Board of Directors may be a physical invitation, by phone, fax, email or other forms prescribed by the Company’s Charter as long as they are delivered to the mailing address of each member of the Board of Directors registered at the Company.
7. The President of the Board of Directors or the person who convenes the meeting shall send the same invitations and enclosed documents to members of the Board of Controllers.
Members of the Board of Controllers are entitled to participate and discuss in meetings of the Board of Directors but must not vote.
8. The meeting of the Board of Directors shall be opened when it is participated in by three fourths (3/4) of the members. In case the number of participating members is not adequate, the second meeting shall be convened within [07 days] from the intended date of the first meeting, [unless a shorter time limit is prescribed by the Company’s Charter]. The second meeting shall be opened when it is participated in by more than half of the members of the Board of Directors.
9. It is considered that a member of the Board of Directors participates and votes in a meeting when he/she:
a) Participates and votes in person at the meeting;
b) Authorizes another person to participate in the meeting and vote in accordance with Clause 11 of this Article;
c) Participates and votes at an online meeting; cast electronic votes or in other electronic forms;
d) Sends his/her votes by mail, fax or email;
dd) Sends his/her votes using other means [prescribed by the Company’s Charter].
10. In case the votes are sent to the meeting by mail, they must be put in sealed envelopes and delivered to the President of the Board of Directors at least 01 hour before the opening hour. The votes shall only be opened in the presence of all participants.
11. The members shall participate in all meetings of the Board of Directors. A member may authorize another person to participate in the meeting and vote if it is approved by the majority of the members of the Board of Directors.
12. [Unless a higher ratio is prescribed by the Company’s Charter], a resolution or decision of the Board of Directors will be ratified if it is approved by the majority of the participating members. In case of a tie, the President of the Board of Directors shall have the casting vote.
Article 17. Minutes of meetings of the Board of Directors
1. Minutes of all meetings of the Board of Directors shall be taken in the form of written documents and may also be recorded or stored in other electronic forms. The minutes must be taken in Vietnamese and may also be in foreign languages with the following contents:
a) The enterprise’s name, headquarters address, identification number;
b) The meeting time and location;
c) Purposes, agenda and contents of the meeting;
d) Full name of every participating member and their authorized participants; full names of absent members and reasons;
dd) Issues to be discussed and voted at the meeting;
e) Summaries of opinions of each participating member in chronological order;
g) The voting result, including specific members that cast affirmative votes, negative votes and abstentions;
h) Ratified issues and ratio of affirmative votes;
i) Full names and signatures of the chair and minutes taker, except in the case specified in Clause 2 of this Article.
2. In case the chair or minutes take refuses to sign the minutes, the minutes is still effective if it bears the signatures of all other participating members and have adequate contents according to Points a, b, c, d, dd, e, g and h Clause 1 o this Article.
3. The chair, minutes taker and other persons who sign the minutes shall be responsible for its truthfulness and accuracy.
4. The minutes of meeting of the Board of Directors and other documents used in the meeting shall be retained at the Company’s headquarters.
5. The minutes in Vietnamese and foreign languages have equal legal value. In case of discrepancies between the Vietnamese version and the foreign language version, the former shall apply.
Chapter V
REPORTING AND DISCLOSURE OF INTERESTS
Article 18. Submission of annual reports
1. At the end of the fiscal year, the Board of Directors shall submit the following reports to the GMS:
a) The Company’s income statement;
b) The financial statement;
c) The report on management and administration of the Company;
d) Verification report by the Board of Controllers.
2. The reports mentioned in Points a, b and c Clause 1 of this Article shall be sent to the Board of Controllers for verification at least 30 days before the opening date of the GMS unless otherwise prescribed by the Company’s Charter.
3. The reports mentioned in Clause 1 and Clause 2 of this Article, verification reports of the Board of Controllers and audit reports shall be retained at the Company’s headquarters at least 10 days before the opening date of the GMS unless a longer time is prescribed by the Company’s Charter. The shareholders that have held the Company’s shares for at least 01 years are entitled to examine the reports mentioned in this Article themselves or together with their lawyers, accountants or audits who have practicing certificates.
Article 19. Remunerations, bonuses and other benefits of members of the Board of Directors
1. The Company is entitled to pay remunerations and bonuses to members of the Board of Directors according to business performance.
2. Members of the Board of Directors are entitled to remunerations and bonuses. Remunerations are calculated according to the number of working days necessary for completion of their tasks and the daily rate. The Board of Directors shall estimate the remuneration of each member under unanimity rule. The total remunerations and bonuses for the Board of Directors shall be decided by the annual GMS.
3. Remunerations of each member of the Board of Directors shall be recorded as the Company’s operating costs in accordance with regulations of law on corporate income tax, presented in a separate section of the Company’s annual financial statement and reported at the annual GMS.
4. [Members of the Board of Directors who are holding the executive positions or working in subcommittees of the Board of Directors or performing tasks other than normal tasks of members of the Board of Directors may be paid an additional remuneration in the form of a lump sum, salary, commission, profit percentage or another form decided by the Board of Directors].
5. Members of the Board of Directors are entitled to reimbursement for the costs of travel, lodging and other reasonable costs incurred during the performance of their tasks, including the costs of participation in meetings of the GMS, the Board of Directors or its subcommittees.
6. Members of the Board of Directors may have liability insurance purchased by the Company if this is approved by the GMS. This insurance does not cover liability of members of the Board of Directors relevant to violations against the law and the Company’s Charter.
Article 20. Disclosure of related interests
If the Company’s Charter does not have tighter restrictions, interests and related persons of the Company shall be disclosed as follows:
1. Members of the Board of Directors shall declare their related interests, including:
a) Names, enterprise ID numbers, headquarters addresses, business lines of enterprises in which they have stakes or shares; their holdings and time of holdings;
b) Names, enterprise ID numbers, headquarters addresses, business lines of enterprises they and their related persons jointly or separately hold stakes or shares that are worth more than 10% of charter capital.
2. The information mentioned in Clause 1 of this Article shall be declared within 07 working days from the occurrence date of related interests; any revision shall be informed to the Company within 07 working days from its occurrence date.
3. Before performing any task within the scope of operation of the Company, whether in their own names or others, members of the Board of Directors must explain the nature and contents of these tasks to the Board of Directors and may only perform them if they are approved by the majority of the remaining members of the Board of Directors. Otherwise, any income generated by such activity will belong to the Company.
Chapter VI
RELATIONSHIPS OF THE BOARD OF DIRECTORS
Article 21. Relationship between members of the Board of Directors
1. The relationships between members of the Board of Directors are cooperation. Members of the Board of Directors are responsible for informing each other of the issues that occur during the performance of their assigned tasks.
2. During performance of their tasks, the member in charge shall coordinate operations of other members if they are relevant to his/her tasks. In case of disagreements among members of the Board of Directors, the member in charge shall submit a report to the President of the Board of Directors for consideration or hold a meeting of members of the Board of Directors in accordance with regulations of law, the Company’s Charter and this document.
3. In case of reassignment among members of the Board of Directors, they shall hand over relevant tasks and documents. The handover shall be recorded in writing and reported to the President of the Board of Directors.
Article 22. Relationship with the executive board
With the administration role, the Board of Directors shall promulgate resolutions, which will be implemented by the Director/General Director, supervise and inspect the implementation of such resolutions.
Article 23. Relationship with the Board of Controllers or Audit Committee
1. The relationship between the Board of Directors and the Board of Controllers or Audit Committee is cooperation. The Board of Directors shall work with the Board of Controllers or Audit Committee on equality and independence principles; cooperate and assist one another in performance of their tasks.
2. When receiving inspection records or consolidated reports of the Board of Controllers or Audit Committee, the Board of Directors shall examine them and request relevant units to formulate plans and promptly make rectifications.
Chapter VII
IMPLEMENTATION CLAUSES
Article 24. Effect
The Regulations on Operation of the Board of Directors of ... JSC. consists of [ ... chapters], [... articles] and comes into force from [dd/mm/yyyy]/
| ON BEHALF OF PRESIDENT OF THE BOARD OF DIRECTORS |
APPENDIX IV
(Enclosed with Circular No. 116/2020/TT-BTC dated December 31, 2020 of the Minister of Finance)
NAME OF COMPANY | SOCIALIST REPUBLIC OF VIETNAM |
| [location, date] |
MODEL REGULATIONS ON OPERATION OF THE BOARD OF CONTROLLERS
Pursuant to the Law on Securities dated November 26, 2019;
Pursuant to the Law on Enterprises dated June 17, 2020;
Pursuant to the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
Pursuant to the Circular No. 116/2020/TT-BTC dated December 31, 2020 of the Minister of Finance providing guidelines for implementation of some Articles on administration o public companies in the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 elaborating some Articles of the Law on Securities;
Pursuant to the Charter of ... JSC.
Pursuant to Resolution No. ... dated ... of General Meeting of Shareholders.
The Board of Controllers promulgates the Regulations on Operation of the Board of Controllers of ... JSC.
The Regulations on Operation of the Board of Controllers of ... JSC has the following contents:
Chapter I
GENERAL PROVISIONS
Article 1. Scope and regulated entities
1. Scope: the Regulations on Operation of the Board of Controllers provide for the organizational structure, operating principles, requirements, rights and obligations of the Board of Controllers and its members prescribed by the Law on Enterprises, the Company’s Charter and relevant regulations.
2. Regulated entities: the Board of Controllers and its members.
Article 2. Operating principles
The Board of Controllers shall work on the collective principle. Members of the Board of Controllers shall be personally responsible for the performance of his/her own tasks and be jointly responsible to the GMS and the law for the tasks and decision of the Board of Controllers.
Chapter II
MEMBERS OF THE BOARD OF CONTROLLERS (CONTROLLERS)
Article 3. Rights, obligations and responsibilities of members of the Board of Controllers
1. Comply with regulations of law, the Company’s Charter, resolutions of the GMS and professional ethics in performance of their duties.
2. Perform their rights and obligations in an honest and prudent manner for the best and lawful interests of the Company.
3. Be loyal to the interests of the Company and shareholders; Do not abuse power, position or use information, secrets, business opportunities and other assets of the Company for personal gain or serving the interests of any other organization or individual.
4. Other obligations prescribed by the Law on Enterprises and the Company’s Charter.
5. In case violations against regulations of Clauses 1, 2, 3 and 4 of this Article cause damage to the Company or other persons, members of the Board of Controllers shall personally or jointly pay compensation for such damage. The income and benefits earned by the members of the Board of Controllers from these violations shall be returned to the Company.
6. In case a member of the Board of Controllers is found to be violating his rights and obligations, a written notice shall be sent to the Board of Controllers requesting the violator to stop committing the violations and take remedial measures.
Article 4. Term of office and quantity of members of the Board of Controllers
1. The Board of Controllers has [... members] (03 – 05 members). The term of office of members of the Board of Controllers shall not exceed 05 years without term limit.
2. Members of the Board of Controllers are not necessarily shareholders of the Company.
3. More than half of the members of the Board of Controllers must be residents of Vietnam.
4. In case the term of office of all members of the Board of Controllers end before new members are elected, the existing members shall keep performing their rights and obligations until new members are elected and take over their tasks.
Article 5. Requirements to be satisfied by members of the Board of Controllers
1. A member of the Board of Controller shall satisfy the following requirements:
a) He/she is not any of the persons specified in Clause 2 Article 17 of the Law on Enterprises;
b) He/she is trained in economics, finance, accounting, audit, law, business administration or another major that is relevant to the enterprise’s operation;
c) He/she is not a relative of any member of the Board of Directors, the General Director or any other managers;
d) He/she is not an manager, not necessarily a shareholder or employee of the Company, [unless otherwise prescribed by the Company’s Charter];
dd) He/she does not work in the Company’s accounting or finance department;
e) He/she is not a member of employee of the accredited audit organization that is auditing the Company’s financial statements over the last 03 years;
g) Other requirements prescribed by law and [the Company’s Charter].
2. In addition to the requirements specified in Clause 1 of this Article, members of the Board of Controllers of a public company prescribed in Clause 1 Article 88 of the Law on Enterprises must not be relatives of managers of the Company and the parent company, representatives of investment of the Company, representatives of investment of the State in the Company and the parent company.
Article 6. Chief Controller
1. The Chief Controller shall have a bachelor’s degree or higher in economics, finance, accounting, audit, law, business administration or another major that is relevant to the enterprise’s operation [unless higher qualifications are required by the Company’s Charter].
2. The Chief Controller shall be elected by the Board of Controllers among its members; the election, dismissal and discharge of the Chief Controller shall be carried out under the majority rule.
3. Rights and obligations of the Chief Controller shall be specified in the Company’s Charter.
Article 7. Nomination and self-nomination of members of the Board of Controllers
1. The shareholder or group of shareholders that holds at least [10%] of total ordinary shares or [a smaller amount specified in the Company’s Charter] is entitled to nominate candidates to the Board of Controllers. [Unless otherwise prescribed by the Company’s Charter], candidates shall be nominated as follows:
a) The group of shareholders that nominate candidates to the Board of Controllers must inform the participants of the meeting before the opening of the GMS;
b) Depending on the quantity of members of the Board of Controllers, the shareholders or groups of shareholders prescribed I this Clause may nominate one or some candidates according to the decision of the GMS to the Board of Controllers. In case the number of nominated candidates is smaller than the maximum permissible number of candidates specified in the decision of the GMS, the remaining candidates shall be nominated by Board of Directors, the Board of Controllers and other shareholders.
2. In case the number of candidates is smaller than the minimum number specified in Clause 5 Article 115 of the Law on Enterprises, the incumbent Board of Controllers shall nominate more candidates or organize the nomination in accordance with the Company’s Charter and administration regulations and operating regulations of the Board of Controllers. This must be announced before the GMS starts to vote for members of the Board of Controllers as prescribed by law.
Article 8. Method for election, dismissal and discharge of members of the Board of Controllers
1. The election, dismissal and discharge of members of the Board of Controllers shall be carried out by the GMS.
2. [Unless otherwise prescribed by the Company’s Charter], the voting on members of Board of Controllers shall be carried out by cumulative voting. This means each shareholder has a number of votes that is equivalent to their shares multiplied by the number of members of the Board of Controllers, and may caste all or some of the votes for one or some candidates. Elected members of the Board of Controllers shall be chosen according to number of votes received in descending order until the minimum number specified in the Company’s Charter is reached. In case 02 or more candidates for the last member of the Board of Directors receive the same number of votes, they will undergo another voting or be selected according to the voting regulations of the Company’s Charter.
Article 9. Cases of dismissal, discharge of members of the Board of Controllers
1. A member of the Board of Controllers will be dismissed by the GMS in the following cases:
a) He/she no longer fully satisfies the requirements specified in Article 169 of the Law on Enterprises;
b) He/she hands in resignation letter which is accepted;
c) Other cases specified in the Company’s Charter.
2. A member of the Board of Controllers will be discharged by the GMS in the following cases:
a) He/she fails to fulfill the assigned tasks and duties;
b) He/she fails to perform his/her rights and obligations for 06 consecutive months, except in force majeure events;
c) He/she commits multiple or serious violations against obligations of members of the Board of Controllers prescribed by the Law on Enterprises and the Company’s Charter.
d) Other cases specified in the resolution of the GMS.
Article 10. Announcement of election, dismissal and discharge of members of the Board of Controllers
1. After candidates for members of the Board of Controllers have been nominated, the Company shall publish information about these candidates at least 10 days before the opening date of the GMS on the Company’s website for the shareholders to study their profiles before voting. Each candidate shall prepare a written declaration that information about him/her is correct and to perform his/her duties in an honest and prudent manner for the best interests of the Company if he/she is given the position of member of the Board of Directors. Information about candidates includes:
a) Full name, date of birth;
b) Qualifications;
c) Work experience;
d) Other managerial positions;
dd) Interests relevant to the Company and the Company’s related parties;
e) Other information (if any) specified in the Company’s Charter;
g) The Company shall disclose information about the companies in which the candidates are holding managerial positions and their interests in these companies (if any).
2. The results of election, dismissal and discharge of members of the Board of Controllers shall be announced in accordance with regulations on information disclosure.
Chapter III
BOARD OF CONTROLLERS
Article 11. Rights, obligations and responsibilities of the Board of Controllers
1. Supervise the Board of Directors, the Director/General Director managing and operating the Company.
2. Inspect the rationality, legitimacy, truthfulness and prudency in business operation and management; the systematization, uniformity and appropriateness of accounting, statistics production and preparation of financial statement.
3. Inspect the adequacy, legitimacy and truthfulness of income statements, annual and 6-month financial statements of the Company; assess management tasks performed by the Board of Directors; submit reports to the annual GMS. Review contracts and transactions with related persons within the authority to approve of the Board of Directors or the GMS; offer recommendations concerning these contracts and transactions.
4. Review, inspect, evaluate the effectiveness of the internal control, audit, risk management and early warning of the Company.
5. Examine accounting books, accounting records and other documents of the Company; management and operation of the Company where necessary or under the resolution of the GMS or at the request of the shareholder or group of shareholders specified in Clause 2 Article 115 of the Law on Enterprises.
6. Within 07 working days from the receipt of the request from the shareholder or group of shareholders specified in Clause 2 Article 115 of the Law on Enterprises, the Board of Controllers shall carry out an inspection. Within 15 days from the end of the inspection, the Board of Controllers shall submit an inspection report to the Board of Directors and the requesting shareholder or group of shareholders. The inspection by the Board of Controllers must not affect the normal operation of the Board of Directors and the Company’s business operation.
7. Propose changes and improvements to the organizational structure, supervision and administration mechanism to the Board of Directors or the GMS.
8. Whenever a member of the Board of Directors, the Director/General Director is found to be violating Article 165 of the Law on Enterprises, promptly send a notice to the Board of Directors requesting the violator to stop the violation and take remedial measures.
9. Participate and discuss in meetings of the GMS, the Board of Directors and other meetings of the Company.
10. Employ independent counselors and internal audits of the Company to serve the performance of their tasks.
11. The Board of Controllers may consult with the Board of Directors before submitting its reports, verdicts and proposals to the GMS.
12. Inspect specific issues relevant to the Company management and administration at the request of the shareholders.
13. Request the Board of Directors to convene an extraordinary GMS.
14. Convene the GMS instead of the Board of Directors within 30 days if the Board of Directors fails to do it as prescribed in Clause 3 Article 140 of the Law on Enterprises.
15. Request the President of the Board of Directors to convene meeting of the Board of Directors.
16. Examine, extract, copy all or part of the list of related persons and interests prescribed in Clause 1 and Clause 2 Article 164 of the Law on Enterprises.
17. Submit and request the GMS to approve the list of accredited audit organizations, which will audit the Company’s financial statements; accredited audit organization shall also audit the Company’s operation where necessary.
18. Take responsibility to the shareholders for the supervision tasks performed by the Board of Controllers.
19. Supervise the Company’s finance, lawfulness of operation of members of the Board of Directors, the Director/General Director and other managers.
20. Cooperate with the Board of Directors, the Director/General Director and shareholders.
21. Send a written notice to the Board of Directors within 48 hours after discovery of violations against the law or the Company’s Charter by a member of the Board of Directors, General Director/Director or another executive of the Company, and request the violator to stop committing the violations and take remedial measures.
22. Formulate the Regulations on Operation of the Board of Controllers and submit them to the GMS for ratification.
23. Witness the vote counting by the Board of Directors and issue a vote counting record if requested by the Board of Directors in case of questionnaire survey for ratification of the GMS’ resolution.
24. The Chief Controller shall preside over the election of the chair of the GMS in case the President is absent or temporarily unable to work while the remaining members of the Board of Directors cannot elect a chair. In this case, the person who receives the most votes shall chair the meeting.
25. Perform other rights and obligations prescribed by the Law on Enterprises, the Company’s Charter and the resolution of the GMS.
Article 12. Rights to be provided with information of the Board of Controllers
1. Documents and information shall be sent to members of the Board of Controllers at the same time and using the same method as those applied to members of the Board of Directors, including:
a) Meeting invitations, questionnaires for members of the Board of Directors and enclosed documents;
b) The resolutions, decisions and minutes of the GMS and meetings of the Board of Directors;
c) Reports submitted by the Director/General Director to the Board of Controllers or other documents issued by the Company.
2. Members of the Board of Controllers are entitled to access the Company’s documents retained at its headquarters, branches and other locations; enter the working locations of the Company’s managers and employees during office hours.
3. The Board of Directors, its members, the Director/General Director and other managers shall provide accurate, adequate and timely information and documents about the Company’s management and operation at the request of the Board of Controllers or its members.
Article 13. Responsibility of the Board of Controllers to convene extraordinary GMS
1. The Board of Controllers shall convene the GMS instead of the Board of Directors within 30 days if the Board of Directors fails to convene the GMS in the following cases:
a) The number of members of the Board of Controllers drops below the minimum number prescribed by law;
b) It is requested by the shareholder or group of shareholders prescribed in Clause 2 Article 115 of the Law on Enterprises;
c) An extraordinary GMS is requested by the Board of Controllers but not convened by the Board of Directors, [unless otherwise prescribed by the Company’s Charter].
2. In case the Board of Controllers does not convene the GMS as per regulations, the Board of Controllers shall pay damage incurred by the Company.
3. The costs of convening and conducting the GMS as prescribed Clause 1 of this Article shall be reimbursed by the Company.
Chapter IV
MEETINGS OF THE BOARD OF CONTROLLERS
Article 14. Meetings of the Board of Controllers
1. The Board of Controllers shall have at least 02 meetings per year. Each meeting must be participated in by at least two thirds (2/3) of its members.
2. The Board of Controllers is entitled to request members of the Board of Directors, THE Director/General Director and representatives of the accredited audit organization to participate in its meetings and clarify raised issues.
Article 15. Minutes of meetings of the Board of Controllers
Minutes of these meetings must be detailed, bear the signatures of the minute taker and participating members. All minutes of meetings of the Board of Controllers must be retained in order to attribute responsibility of each member.
Chapter V
REPORTING AND DISCLOSURE OF INTERETS
Article 16. Submission of annual reports
Reports to be submitted by the Board of Controllers at annual GMS include:
1. Reports on the Company’s business performance, performance of the Board of Directors, the Director/General Director, which shall be submitted to the annual GMS for approval.
2. The self-assessment report on performance of the Board of Controllers and its members.
3. Remunerations, operating costs and other benefits of the Board of Controllers and each of its members.
4. Summaries of meetings of the Board of Controllers, verdicts and proposals of the Board of Controllers; result of supervision of the Company’s operation and finance.
5. Assessment reports on transactions between the Company, subsidiary companies and other companies over 50% charter capital of which is held by the public company with members of the Board of Directors, the Director/General Director and their related persons; transactions between the Company with companies whose founders or managers are members of the Board of Directors over the last 03 years from the transaction date.
6. Result of supervision of the Board of Directors, the General Director/Director and other executives.
7. Evaluation of cooperation between the Board of Controllers, the Board of Directors, the Director/General Director and shareholders.
8. Submit and request the GMS to approve the list of accredited audit organizations, which will audit the Company’s financial statements; accredited audit organization shall also audit the Company’s operation where necessary.
Article 17. Salaries and other benefits
[Unless otherwise prescribed by the Company’s Charter], the salaries, remunerations, bonuses and other benefits of members of the Board of Controllers shall comply with the regulations below:
1. Members of the Board of Controllers shall receive salaries, remunerations, bonuses and other benefits under the decision of the GMS. The GMS shall decide the salaries, remunerations, bonuses and other benefits and annual budget of the Board of Controllers.
2. Members of the Board of Controllers shall the reasonable costs of accommodation, travel and independent counseling services reimbursed. The total costs must not exceed the annual budget of the Board of Controllers which has been approved by the GMS, unless otherwise decided by the GMS.
3. Salaries and operating costs of the Board of Controllers shall be recorded as the Company’s operating costs in accordance with regulations of law on corporate income tax, presented in a separate section of the Company’s annual financial statement.
Article 18. Disclosure of related interests
1. Members of the Board of Controllers shall declare their related interests, including:
a) Names, enterprise ID numbers, headquarters addresses, business lines of enterprises which they own or in which they have stakes or shares; their holdings and time of holdings or ownership;
b) Names, enterprise ID numbers, headquarters addresses, business lines of enterprises they and their related persons jointly or separately own or hold stakes or shares that are worth more than 10% of charter capital.
2. The information mentioned in Clause 1 of this Article shall be declared within 07 working days from the occurrence date of related interests; any revision shall be informed to the Company within 07 working days from its occurrence date.
3. Members of the Board of Controllers and their related persons may only use the information obtained from their positions to serve the interests of the Company.
4. Members of the Board of Controllers shall send written notices to the Board of Directors and the Board of Controllers of the transactions between the Company, subsidiary companies, companies over 50% of charter capital of which is held by the Company with related persons of members of the Board of Controllers as prescribed by law. The Company shall disclose information about the transactions that are approved by the GMS or the Board of Directors in accordance with regulations of the Law on Securities on information disclosure.
5. Members of the Board of Controllers and their related persons must not use or reveal internal information for carrying out relevant transactions.
Chapter VI
RELATIONSHIPS OF THE BOARD OF CONTROLLERS
Article 19. Relationships between members of the Board of Controllers
Members of the Board of Controllers are independent from one another and shall cooperate in performance of common tasks to fulfill the responsibility, rights and obligations of the Board of Controllers as prescribed by law and the Company’s Charter. The Chief Controller shall coordinate operation of the Board of Controllers but does not have the right to control its members.
Article 20. Relationship with the executive board
The Board of Controllers is independent from the executive board of the Company and shall supervise operation of the executive board.
Article 21. Relationship with the Board of Directors
The Board of Controllers is independent from the Board of Directors and shall supervise operation of the Board of Directors.
Chapter VII
IMPLEMENTATION CLAUSES
Article 22. Effect
The Regulations on Operation of the Board of Controller of ... JSC. consists of [ ... chapters], [... articles] and comes into force from [dd/mm/yyyy].
| CHIEF CONTROLLER |
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