CHARTER TO JOINT STOCK COMPANY (JSC)
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I. DEFINITIONS AND INTERPRETATIONS
1. Definitions
Unless the terms or context of this Charter otherwise require, the capitalized terms used herein shall have the following meanings:
“Affiliate” shall mean an entity, corporate or non-corporate, controlling or controlled by a Shareholder, or associated with a Shareholder through common controlling or controlled entities. For the purposes hereof, control shall be deemed to exist if one entity owns, directly or indirectly, through shareholdings or otherwise, at least fifty-one (51%) percent of the voting shares or other voting units of participation in another entity.
“Annual Financial Accounts” means the unconsolidated and consolidated balance sheet, profit and loss account, and cash flow statement, or such other annual financial reports for the immediate preceding fiscal year, which the Company shall prepare during the first two months of each fiscal year. These accounts are required by the Law to be maintained and submitted to the competent State Authorities.
“Board Meeting” means a meeting of the Board of Management.
“Board Member” means a member of the Board of Management.
“Board of Management” means the board of management of the Company appointed and having such powers and duties as set out herein.
“Board of Supervision” means the board of supervision of the Company having the powers and duties set out in this Charter and operating in accordance with this Charter and the Law.
“Business Day” means a day on which banks are open for business in Ho Chi Minh City and Tokyo.
“Chairman” means the chairman of the Board of Management.
“Charter Capital” means the charter capital of the Company as referred to in Article 6.
“Charter” means this Charter of the Company as may be amended and supplemented from time to time.
“Connected Person” means organization and individual who have direct or indirect relationship with the Company as follows:
(a) Any group of persons who act together in an attempt to take over the capital contribution, Shares, or control the decision making process of the Company;
(b) Company managers;
(c) Enterprises that is controlled by persons specified in Item (a) to Item (h), hold Shares to the level that they can control the decision-making process of the management bodies of the enterprise; and
(d) Holding company of the Company, its managers and other persons who are competent to appoint managers of its subsidiary;
(e) Individual or group of individuals those are capable of dominating operations of the Company through management bodies in the Company;
(f) Individual who is authorized representative of those specified in Item (a) to Item (e);
(g) Subsidiaries of the Company; and
(h) Wife, husband, father, foster father, mother, foster mother, child, passed child, or sibling of a manager or a member holding dominant capital share or Shareholder holding a majority of Shares.
“Founding Shareholder” means a Shareholder who initially executed this Charter to establish the Company, whose name, address and shareholding in the Charter Capital is set out in Annex 1.
“Head Office” means the head office of the Company.
“Investment Certificate” means an Investment Certificate issued by the Licensing Authority to establish the Company as may be amended and/or supplemented from time to time.
“Law or Laws” means the Law on Enterprises and all other applicable laws, decrees, decisions, circulars, regulations and other documents having the effect of Law issued by any State Authority (as the same may be amended, supplemented or replaced from time to time) and which are applicable to the Company’s establishment and operation.
“Libor” means, the rate per annum equal to the rate for deposits for a period equal to the term of each period, which appears on Telerate Page 3750 under the caption “British Bankers Association Libor Rates” (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as reasonably determined by the Lender from time to time for purpose of providing quotations of interest rates applicable to US Dollar deposits in the London interbank market) as of 11:00 a.m. London time.
“Licensing Authority” means the Department of Planning and Investment of Binh Duong Province or such other State Authority as may, at the relevant time, have the responsibility and authority under the Law to license and supervise the incorporation, extension and/or operation of the Company.
“Manager” means any Board Member, General Director or other person appointed by the General Director as the manager of the Company from time to time.
“Minute Book” means a book recording all the minutes of the Shareholders Meetings and Board Meetings.
“Ordinary Share” means ordinary share issued by the Company from time to time.
“Ordinary Shareholder” means any person who owns at least one Ordinary Share from time to time.
“Preference Share” means a dividend preference and redeemable Share as set forth in Article 7.4(b).
“Preference Shareholder” means any person who owns at least one Preference Share from time to time.
“Share Certificates” means the certificates issued by the Company in accordance with Article 12 evidencing the ownership over the related amount of Shares by a particular Shareholder and “Share Certificate” means any of them.
“Shareholder Book” means a register to be established and maintained by the Company in accordance with Article 13.
“Shareholder” means any person who owns at least one Share from time to time.
“Shareholders Meeting” means the highest authority of the Company having the powers set out in this Charter and operating in accordance with this Charter and the Law.
“Shares” means Ordinary Shares and Preference Shares issued by the Company from time to time, and “Share” means one of them.
“State Authority” means any and all of the following bodies: the National Assembly, the Standing Committee of the National Assembly, the President of the State, the Government, the Prime Minister, the Government Office, any Ministry, any People's Committee or any of its agencies, departments or bodies, and any and all other committees, ministers, councils, agencies, bodies or officers whose consent, approval, registration, commitment, involvement or consultation is required or desirable in the opinion of the Company for anything or matter referred to in or contemplated by this Charter.
“Supervisor” means a member of the Board of Supervision.
“USD” or “Dollar” means the lawful currency of the United State of America.
“Vietnam” means the Socialist Republic of Vietnam.
“VND” or “Dong” means the lawful currency of Vietnam.
“Year” means a calendar year.
2. Interpretation
(a) The headings used in the Charter are for convenience only and shall not affect the interpretation hereof.
(b) Unless the context otherwise requires, references in the Charter to:
(i) words (including words defined herein) denoting the singular number shall also include the plural and vice versa and words denoting any gender shall include any other gender;
(ii) the expressions "include" or "including" shall be construed without limitation;
(iii) the annexes form part of the Charter;
(iv) “day” shall mean a working day on which banks open to operate in Vietnam; and
(v) “Article” and “Annex” means an article and an annex of the Charter, respectivel
II. INCORPORATION OF COMPANY
The Company is a joint stock company being established and operating pursuant to the Laws. Shareholders shall be responsible for debts and other liabilities of the Company within amount of their contributed capital (Shares) in the Company.
Article 2. Names of Company[1]
The names of the Company shall include:
(a) Vietnamese Name
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Article 3. Head Office, Branches and Representative Offices
The Head Office shall be located at [___], Vietnam.[2] The Company may open branch or representative offices anywhere within or outside Vietnam in conformity with the Laws and as the Board of Management may decide from time to time.
Article 4. Business Activities
The business activities of the Company shall include ___
Article 5. Legal Representative of Company
[The Chairman][3] shall be the legal representative of the Company.
III. CHARTER CAPITAL, SHAREHOLDERS, SHARES AND SHARE CERTIFICATES
6.1 The Charter Capital of the Company shall be ___
6.2 The increase or decrease of Charter Capital shall be subject to the business of the Company and solely decided by the Shareholder Meeting.
7.1 Number and Value of Shares
(a) The Charter Capital is divided into __
(b) Share value: USD___.
7.2 Classes and Number of Shares of each Class of Shares
(a) The Company shall have the following classes of Shares:
(b) Out of the total [15,000] Shares, there shall be:
9,000[5] Ordinary Shares; and
6,000[6] Preference Shares.
(c) The Shareholders of the same class of Shares shall have the same rights, interests and obligations. Details of Shareholders, the number of Shares of each Shareholder are stipulated in Annex 2.
(d) The Company may issue other types of preferential Shares under the decision of the Shareholder Meeting in line with the Laws.
(e) The Ordinary Shares may not be converted into Preference Shares. Preference Shares may be converted into Ordinary Shares pursuant to the decision of the Shareholder Meeting.
7.3 Rights attached to Shares
(ii) The Preference Shares shall have the right to receive notice of, and to attend but not to vote at, a Shareholder Meeting.
1) Cumulative Dividends for a Preference Shareholder
Preference Shareholders shall be entitled to receive cumulative dividends in preference to any dividend on the Ordinary Share, at the aggregate rate of 3month Libor + five (5) % of the share value per annum, when and as declared by the Shareholder Meeting. If the dividends are not paid in any year, the unpaid dividends accumulate and must be paid before any dividends to Ordinary Shareholders.
2) Cumulative Dividends for Ordinary Shareholders
Ordinary Shareholders shall be entitled to receive cumulative dividends in preference to any participating dividends set forth in 3) of this article, at the aggregate rate of 3month Libor + five (5) % of the share value per annum, when and as declared by the Shareholder Meeting. If the dividends are not paid in any year, the unpaid dividends accumulate and must be paid before any Participating Dividends.
3) Participating Dividends
It’s shall be payable pro rata based on the number of shares of the Ordinary Share and the Preference Share, of which number shall be calculated into the number of the Ordinary Share into which they are convertible, but only if and when declared by the Shareholder Meeting. No Participating Dividends shall be paid unless Cumulative Dividends of the Preference Share and Ordinary Share have been paid.
(i) For the purpose of the determination of the dividends, the Libor shall be determined on the last Business Day in December in each year.
(c) As to capital
(i) A Preference Shareholder shall be entitled to request the Company to buy back part or whole of his Preference Shares at any time; and
(ii) In the event of any liquidation or winding up of the Company, a Preference Shareholder shall be entitled to receive, in preference to Ordinary Shareholders, the amount at which the Preference Shareholders, as the case may be, was purchased from the Company plus any accrued but unpaid dividends.
The remaining balance of the proceeds from the liquidation shall then be allocated to the Ordinary Shareholders.
At the option of the holders of the Preferred Share, a merger, sale of all or substantially all of the assets of the Issuer, reorganization or other transaction in which control of the Issuer is transferred may be treated as a liquidation, dissolution or winding up for purposes of the liquidation preference.
Article 8. Rights of Ordinary Shareholders
Without prejudice to any other provisions of this Charter, an Ordinary Shareholder shall have the following rights:[7]
(a) to participate and discuss in all Shareholder Meeting and vote directly or via proxy, each Ordinary Share carries one vote;
(b) to receive dividends at the rate decided by the Shareholder Meeting;
(c) to be given priority in subscribing for new Shares offered for sales in proportion to his Ordinary Shares of the Company;
(d) to check, review and extract information from the list of Shareholders with voting rights and request for correction of any inaccurate information;
(e) to check, review and extract or copy the Charter, Minute Book and other resolutions of Shareholder Meeting;
(f) to receive part of the remaining property in proportion to his Shares in the Company when the Company is dissolved or bankrupted;
(g) to nominate Board Member and Supervisor. Each Ordinary Shareholder shall be entitled to nominate one Board Member and one Supervisor. To the fullest extent permitted by the Laws, a person who is nominated as a Board Member by a Shareholder may be nominated as other Board Members by other Shareholder however he shall not be nominated as Board Members by all Shareholders;[8]
(h) to review and extract the Minute Book, resolutions of the Board of Management, periodical and annual financial report in forms of accounting system of Vietnam and reports of Board of Supervision; and
(i) to request the Board of Supervision to examine specific issue in relation to the management and operation of the Company if necessary. The request must be in writing.
(j) To call for the Shareholder Meeting in any following cases:
(i) The Board of Management seriously violates the rights of Shareholders, duties of managers or makes decisions beyond its power; and
(ii) The term of the Board of Management is expired more than 06 months and no election for the new Board of Management is held.
Such request must be made in writing enclosed with the documents, evidence proving the violations of the Board of Management, seriousness of the said violations and the defective decisions.
Article 9. Obligations of Ordinary Shareholders
Without prejudice to any other provisions of this Charter, an Ordinary Shareholder must:
(a) make full payment to the Company for the subscribed Shares within 90 (ninety) days from the issuance date of the Investment Certificate and be liable for debts and other liabilities of the Company to the extent of the paid-up Shares;
(c) comply with the Charter and internal rules of the Company;
(d) comply with the decisions of the Shareholder Meeting and the Board of Management;
(e) Comply with other obligations in accordance with the Laws and the Charter; and
(f) obtain prior approval from a Preference Shareholder in writing, for the following, before the resolution by the Shareholder Meeting ;
(a) amendment and/or repeal or alteration of the Company Charter;
i) sale, lease, exchange, mortgage, pledge or any disposition in equivalent to [70]% or more of the total value of assets recorded in the latest financial report of the Company including the goodwill of the Company;
ii) incurring and creating indebtedness and issuance of new shares or securities;
iii)merger or consolidation of the Company with any other company, or acquisition of the shares or assets of another entity, or entering into a joint venture;
iv) investment of corporate funds in any other corporation or new business or for any purpose other than the primary purpose for which it was organized;
v) filing of a petition for voluntary reorganization or suspension of payment of its obligations, or an application for the appointment of a receiver or trustee itself or for any part of its properties or an application for the liquidation or dissolution of the Company, or a partial suspension of business operation;
vi) appointment or removal of Board Member, Supervisor, and external auditors;
vii) approval of any sale or disposition of strategic assets or transfer of shares of any subsidiary (including a contribution to a joint venture).
viii) declaration of dividends;
ix) any action which is not in consonance with the declared economic policies of the Company;
x) the creation of reserves;
xi) the modification or reversal of any decision made or taken by the Board of Directors; and
xii) the determination of the compensation of the Board of Directors.
Article 10. Ordinary Shares of Founding Shareholders
(i) paid up by the other Founding Shareholders in proportion to their shareholding;
(ii) paid up by the other Founding Shareholders; and
(iii) paid up by other persons who are not Founding Shareholders. Those persons shall then become the Founding Shareholders of the Company. In this case, the Founding Shareholders who have not yet made payment of subscribed Shares are no longer Founding Shareholders.
Article 11.Rights of Preference Shareholders
A Preference Shareholder shall have the same rights as those of an Ordinary Shareholder except for the rights in relation to the Shareholder Meetings in accordance with Article 7.3(a)(ii).
Article 12. Share Certificates
13.3 A Shareholder holding 5% or more of the total number of Shares shall be registered with the Licensing Authority within 7 days from the date of acquisition of the Share as stipulated in Article 14.5.
Article 14. Issuance of Shares
14.2 For the purpose of this Article, issuance of Shares means any issuance of the authorised Shares, or issuance of new Shares to increase the Charter Capital.
14.3 Subject to the decision of the Shareholder Meeting as stipulated in the Article 24.2(b), the Board of Management has the right to decide the time, method and price of the issuance. The offering price of the issuance shall not be lower than the market price of the offered Shares at the time of issuance or the latest par value of the Shares, except in the following cases:
(a) where Shares are offered for the first time to those who are not Founding Shareholders;
(b) where Shares are offered to all Shareholders in proportion to their respective shareholding; and
(c) where Shares are offered to brokers and/or underwriters.
14.4 In any of the cases as stipulated in Clause (c) above, the applicable discount rate must be approved by the Shareholder Meeting.
(a) The Company must notify all Shareholders of the additional issuance by registered mail. In the meantime, the notice must be published in newspapre in 3 consecutive issues within 10 days from the date of the notice.
(b) Preemption of Share purchase can be transferred to other persons pursuant to Article 15; and
(c) If the Share subscription form is not sent to the Company within the time limit as stipulated in the notification, the relevant Shareholder is considered as refusing preemption of Share. If the offered Shares have not been entirely subscribed by the Shareholders, the Board of Management may decide to offer the unsubscribed Shares to other persons provided that the offering conditions of the unsubscribed Shares are not better than those offered to the relevant Shareholders, unless otherwise agreed by the Shareholder Meeting or the Shares are offered through the stock exchange.
14.8 The Company may conduct the private placements and public offerings pursuant to the decision of Shareholder Meeting and in accordance with the Laws.
15.1 To the fullest extent permitted by the Laws, a Shareholder shall not transfer his Shares or his preemption rights to any person who is not a Shareholder except in the cases as stipulated in Articles 15.2 and 15.3.[9]
15.2 Right of First Refusal
(a) In the case where a Shareholder (the “Transferor”) desires to transfer a part or whole of his Shares (the “Offered Shares”), he/she shall send a [30] day prior notice of the Offered Shares (the “Transfer Notice”) to all other Shareholders (the “Offerees”).
(b) The Transfer Notice shall include following main contents:
(i) Number of the Offered Shares;
(ii) Class of the Offered Shares;
(iii) Price of the Offered Shares;
(iv) Address of the Transferor; and
(v) The offering conditions (if any).[10]
(c) Upon the expiry of the said [30] day time limit, the Transferor shall be entitled to transfer the Transferred Shares to any third party provided that the offering conditions to the third party shall not be more preferential than the conditions offered to the Offerees if:
(i) The Offerees have failed to respond to the Transfer Notice;
(ii) The Offerees do not buy or do not buy in full the Offered Shares; or
(iii) The conditions (if any) as set out in the Transfer Notice are not satisfied by the Offerees.
(b) If the Tag-Along Offerees agree to the Tag-Along Notice, they will be entitled to sell their respective Shares to the Tag-Along Transferee on the same terms and conditions of the transfer of the Tag-Along Transferor.
(a) It fails to make full repayment for the principal and interest of issued bonds or do not pay or make full payment of due debts in the last 3 consecutive years; and
(b) The average after-tax-profit ratio in the last three consecutive years is not higher than interest proposed to pay for bonds to be issued;
16.3 The issuance of bonds to creditors that are selected financial institutions shall not be restricted by Article 16.2 (a).
Article 17.Denomination of Shares
To the fullest extent permitted by the Laws, Shares and bonds issued by Company can be paid in either Dong, convertible foreign currencies, gold, and value of land use right, value of intellectual property rights, technology and know-how or other classes of assets and must be paid in full once.
Article 18.Shares Buy-back at Shareholders’ Requests
18.2 The offer to sell the Disagreeing Shareholder’s Shares shall be made in writing and sent to the Company within [10] working days from the date of the relevant decision by the Shareholder Meeting which is disagreed by the Disagreeing Shareholder.
18.3 The Company may buy back the Shares offered by the Disagreeing Shareholder at an agreed price within [90] days from the date of receiving the offer from the Disagreeing Shareholder. If the parties cannot agree on the price of the Disagreeing Shareholder’s Shares, the Company is required to recommend 3 pricing entities and the Disagreeing Shareholder shall choose 1 out of the recommended 3. Decision of the chooen pricing entity shall be final and binding upon the relevant parties. The costs for the pricing entity’s decision shall be equally shared by the relevant parties.
Article 19. Share Buy-back at Company’s Request
The Company may buy back no more than 30% of total issued Ordinary Shares or apart or whole of total issued Preference Shares on the condition that the Company shall keep the ratio of the Ordinary Share and Preference Shares among total issued Shares as 60:40. The Board of Management shall decide buy-back of 10% or less of total issued Shares of each class for every 12 months. Buying back of more than 10% of the total issued Shares shall be decided by the Shareholder Meeting. The buy-back shall be in accordance with the Laws.
Article 20. Conditions for Payment of Buy-back Shares
Article 21 Payment of Dividends
(a) Reservation fund: the amount equivalent to the next two(2) times of repayment of principal with interest thereon and all other moneys due or to become due from the Company under any agreements relating to borrowing and issuing bond ; and
(b) Bonus: [5] % of the Net Profit.
21.2 Net profit (“Net Profits”) for the purpose of dividends payment shall be determined pursuant to the applicable Vietnamese Accounting System.
21.3 Dividends can be paid in form of cash, Shares or assets subject to the decisions of the Shareholder Meeting. If payment is made in cash, that cash must be USD and can be in made by cheque or a monetary order sent to the resident addresses of the Shareholders.
Article 22 Recovery of Payment for Buy-back Shares or Dividends
In the case where a Share buy-back does not comply with Article 20 or the payment of dividend is contrary to Article 21, the relevant Shareholder shall return the Company his paid money or assets. In the case where a Shareholder is not able to do so, that Shareholder and all Board Members shall jointly be liable to debts of the Company to the extent of the paid money or assets he being unable to return to the Company.
Article 23. Acts of Default by Ordinary Shareholders
23.1 The occurrence of any of the following shall, while it subsists, constitute an act of default by Ordinary Shareholders:
(a) the failure of Ordinary Shareholders to comply with any material obligation imposed to it by this Agreement;
(b) an application (which is not dismissed or withdrawn within 30 Business Days) is made for the bankruptcy, winding up or dissolution of Ordinary Shareholders;
(c) an order is made or a resolution is passed for the bankruptcy, winding up or dissolution of Ordinary Shareholders, otherwise than for the purposes of a solvent reconstruction or amalgamation;
(d) a receiver, trustee or similar official is appointed over all or any part of the assets of Ordinary Shareholders; or
(e) Ordinary Shareholders enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors generally or any class or its creditor or proceedings are commenced to sanction any such arrangement, composition or compromise.
23.1 If a Ordinary Shareholder commits an act of default under Article 23.1 (the "Defaulting Shareholder"), any of a Preference Shareholder (the "Non-Defaulting Shareholders") may, at any time after that act of default occurs, serve a notice of default on the Defaulting Shareholder specifying the nature of the default. If that act of default is not remedied by the Defaulting Shareholder within 30 Business Days after the giving of the notice of default, the Defaulting Shareholder shall purchase all of the Preference Share from Non-Defaulting Shareholders with the par value or as otherwise agreed between Defaulting Shareholder and Non-Defaulting Shareholders. If the parties do not reach to the agreement with regard to the purchasing price within 210 days after the giving of the notice of default, the Defaulting Shareholder shall be deemed to have relinquished its entire ownership interest in the Company to the Non-Defaulting Shareholders pro rata in proportion to their ownership interests or as otherwise agreed between the Non-Defaulting Shareholders.
23.1 In the event an act of default under Article 23.1(a) occurs, such act of default shall not operate to deem the Defaulting Shareholder to have relinquished its Ownership Interest, if the Defaulting Shareholder:
(a) remedies such default within thirty(30) days after the notice of default is given;
(b) gives notice to the Non-Defaulting Shareholders that the Defaulting Shareholder will pay adequate monetary compensation to the Non-Defaulting Shareholders if the default is not capable of being remedied; or
(c) the alleged default relates to a matter in respect of which the alleged Defaulting Shareholder has provided the other Shareholders with a notice of Force Majeure pursuant to the provisions of Article 24.
Article 24. Force Majeure
24.1 If a Shareholder is rendered unable wholly or in part by force majeure to carry out its obligations under this Charter, it shall give to the other Shareholders prompt notice of the force majeure with reasonably full particulars thereof, and its obligations, so far as they are affected by the force majeure, shall be suspended during but not longer than the continuance of the force majeure.
24.2 The claiming Shareholder shall use all reasonable diligence in the circumstances to remove the force majeure as quickly as practicable save that it shall not thereby be rendered liable to settle any strike, lockout or other labor difficulty on terms not reasonably acceptable to it or to its Affiliate which is carrying on a substantially similar or related business which may reasonably be expected to be adversely affected by that settlement.
24.3 For the purposes of this Agreement, the term "force majeure" shall mean:
(a) war, whether declared or undeclared, act of war, threat of imminent war, revolution, terrorist activities, rebellion, or act of public enemies;
(b) riot, civil commotion, vandalism, sabotage, blockade, or disturbance or any unlawful act against public order or authority;
(c) strike, lockout, shortage of necessary labor, stoppage, ban or limitation on work or restraint of labor or any other form of industrial disturbance, whether at the Project Lands, or otherwise;
(d) act of God, fire, flood, storm, typhoon, tsunamis, lightning strike, earthquake, drought, tempest or cyclone or other adverse weather condition;
(e) act or restraint of any governmental or semi-governmental or other public or statutory authority of the Philippines or Japan, having or purporting to have jurisdiction;
(f) the inability to obtain, or revocation of, or amendment to any order, permit, license, certificate, authorization or approval of any governmental or regulatory body that is or may be required in order to perform or comply with any term or condition of this Agreement, including such of the foregoing as may be required in order to conduct any work under the Tenement Permits/Agreements, unless such revocation or amendment of any such order, permit, license, certificate, authorization or approval was caused by the violation of its terms or consented to by the Shareholder holding it;
(g) serious or significant interruption in transport; or
(h) any other cause not reasonably within the control of the claiming Shareholder.
24.4 As soon as practicable after giving notice under Article 23.1, the claiming Shareholder shall provide to the other Shareholders a sworn declaration confirming the particulars required to be given under Article 23.1.
24.5 A Shareholder shall not be entitled to claim the benefit of the provisions of Article 23 under any or all of the following circumstances:
(a) if the failure to observe or perform the obligation imposed upon such Shareholder was caused by an arrest or restraint by the government agencies or the order of any court and such arrest, restraint or order was as a result of a breach by such Shareholder of an obligation hereunder;
(b) if the failure to observe or perform the obligation imposed upon such Shareholder was caused by such Shareholder's failure to act in a reasonable and prudent manner under the circumstances; or
(c) if such Shareholder fails to give the other Shareholders notice in writing as soon as reasonably possible after determining that the occurrence was of the nature of force majeure to the effect that such Shareholder was unable by reason of force majeure (the nature thereof shall be therein specified) to perform the particular obligation.
Article 25. Additional Funding
25.1 the Company shall, at its own responsibility and expense, procure whatever funds may be necessary for it to conduct its business operations over and above its paid in capital and retained earnings.
25.2 Should it be determined by the parties hereto, in accordance with sound and prudent business practices, that additional paid in capital is required for the Company over and above that to be contributed by the parties hereto pursuant to Article 2 hereof, such additional capital shall, unless otherwise agreed by all the parties hereto, be provided by Ordinary Shareholders, notwithstanding any other provision to the contrary, which may further increase the capitalization of the Company and allow for third party subscription thereof.
25.3 In lieu of contributing further paid in capital to the Company, to loan such additional funds as the Company requires to it directly or to guarantee loans to the Company by a bank or other financial institution. Such loans or guarantees, as the case may be, shall, unless otherwise agreed by all the parties hereto, be arranged by Ordinary Shareholders.
Article 26. Organizational Structure
The organization of the Company shall comprise of:
(d) General Director; and
Article 27. Shareholder Meeting
27.1 All Shareholders with voting rights make up the Shareholder Meeting that acts as the highest decision-making body of a shareholding Company. The Shareholder Meeting shall have the following rights and obligations:
(a) To approve development strategy of the Company;
(b) To decide classes and total number of authorized offered SharesShares of each class offered for sales; decide the annual dividend per Shareshare;
(c) To elect, exempt and dismiss the Board Members and Supervisor;
(d) To make decisions on investment or sales of assets in equivalent to [70]% [11] or more of the total value of assets recorded in the latest financial report;
(e) To decide revision or supplementation of the Charter, except where there is an adjustment of share capital as a result of selling further authorized SharesShares offered for sales in accordance with the provision of this Charter;
(f) To ratify the annual financial report;
(g) To make decision on the buy-back of more than 10% of issued SharesShares of each class;
(h) To investigate and decide how to deal with breaches committed by the Board of Management and the Board of Supervision, which cause damages to the Company and Shareholders;
(i) To decide on the re-organization and dissolution of the Company; and
(j) To do such other acts and things as the Shareholder Meeting deem fit and in accordance with this Charter and the Laws.
27.2 Entity Shareholders shall appoint not more than 3 authorized representatives to exercise their rights in pursuant to the Laws. If there are more than one authorized representative is appointed, a number of SharesShares and votes of each authorized representative shall be equal[12]. The dismissal, appointment or change of authorized representatives shall be made in writing and notify to the Company as soon as possible.
Article 28. Call for Shareholder Meetings
28.1 Shareholder Meeting shall be held annually or extraordinarily but at least once per year. The venue of the Shareholder Meeting shall be within territory of Vietnam. A Shareholder Meeting shall be called for within four months from the ending date of fiscal year.
28.2 The annual Shareholder Meeting shall discuss and approve:
(a) The Annual Financial Accounts;
(b) The report of the Board of Management on the evaluation of the business management and performance of the Company;
(c) The report of the Board of Supervision on the Board of Management and the General Director;
(d) Dividends for each class of Shares; and
(e) Other issues suggested by the Board of Management.
28.3 The Board of Management is required to call for extra Shareholder Meeting in the event where:
(a) It is necessary for the benefits of the Company;
(b) The number of Board Members are reduced to a number smaller than that stipulated in the Laws;
(c) There is a request made by any Shareholder; or
(d) There is a request made by the Board of Supervision.
28.4 The Board of Management shall call for Shareholder Meeting within [30] days from the date of receiving a request as stipulated in Article 25.4 or on which the decrease in number of Board Members has occured.
28.5 If the Board of Management fails to call for the Shareholder Meeting as required, Chairman of the Board of Management shall be responsible before the Laws and be liable to any damage causing to the Company.
28.6 Where the Board of Management fails to call for the Shareholder Meeting as stipulated in Article 25.4, the Board of Supervision in replace of the Board of Management shall call for the Shareholder Meeting within the next [30] days in complying with this Charter.
28.7 If the Board of Supervision fails to call for the Shareholder Meeting as required, Chairman of the Board of Supervision shall be responsible before the Laws and be liable to any damage causing to the Company.
28.8 Where the Board of Supervision fails to call for the Shareholder Meeting as stipulated in Article 25.6, any Shareholder or group of Shareholders in place of the Board of Management and the Board of Supervision, shall have the right to call for the Shareholder Meeting in complying with this Charter.
28.9 Those who calls for the Shareholder Meeting shall make the list of participating Shareholders, provide information and resolve complaints in relation to the list of participating Shareholders, prepare agenda, contents and materials for such meeting, set the time and venue of the meeting, send the meeting invitations to each participating Shareholder in complying with this Charter.
28.10 All expenses arising from the calling for and organizing the Shareholder Meeting as stipulated in Article 25.4, 25.6 and 25.8 shall be reimbursed by the Company.
Article 29. Agenda and Contents of Shareholder Meetings
29.1 Person who calls for the Shareholder Meeting is responsible for preparing the list of Shareholders eligible to attend the meetings and to vote; prepare the agenda and materials for the meeting and the draft decisions proposed to be passed, determine the time and venue of the meeting and send invitations to all eligible Shareholders.
29.2 Shareholder is entitled to recommend matters to be included in the meeting agenda. Such recommendation must be in writing and send to the Company no later than 3 days prior to the opening date of such a meeting. Recommendation must explicitly state the name of Shareholder, total number of SharesShares of each class, number and date of Shareholder registration and matters proposed to be included in the meeting agenda.
29.3 Person who calls for the Shareholder Meeting can refuse a recommendation as stipulated in Article 26.2 only if:
(a) That recommendation is not sent within the time limit or does not contain all information as required; or
(b) Matters that are proposed to be included in the meeting agenda do not fall under jurisdiction of the Shareholder Meeting.
29.4 Except otherwise stipulated in Article 26.3, person who calls for the Shareholder Meeting must accept and incorporate the recommendation made in pursuant to Article 26.2 into the meeting agenda; the recommendation shall be officially added to the meeting agenda by an approval of the Shareholder Meeting.
Article 30. List of Shareholders Eligible to Participate in Shareholder Meetings
30..1 The list of Shareholders eligible to participate in Shareholder Meeting shall be made basing on the Shareholder Book. The list shall be made as soon as decision on convocation of the meeting is passed and must be completed no later than 10 days prior to the opening date of Shareholder Meeting;
30.2 Shareholders are entitled to shall have the right to check, review, extract and copy the list of Shareholders eligible to participate in the meeting of Shareholders; ask for correction of inaccurate information thereof.
Article 31. Invitation of the Shareholder Meetings
31..1 Person who calls for the Shareholder Meeting must send a meeting invitation to all Shareholders eligible to participate in the meeting of Shareholders no later than 7 days prior to the opening date of the meeting. Meeting invitation is required to send by a secured mail to resident address of Shareholders.
31.2 The meeting invitations must be enclosed with a standard form of authorization, meeting agenda and other relevant materials as well as draft decisions proposed to be passed at the meeting. After launching the website, the meeting invitation and other relevant materials must be posted on the website along with sending to Shareholders.
Article 32. Conditions for Valid Shareholder Meeting
32.1 Shareholder Meeting is entitled to open if all participating Shareholders own at least [65]%[13] of the total voting Shares.
32.2 If the first meeting fails to open due to not satisfying conditions as stipulated in this Article 29.1, the second meeting shall be called for within 30 days from the proposed opening date of the first meeting. The second meeting is entitled to open if all participating Shareholders own at least [51] %[14] of total voting Shares;
32.3 If the second meeting fails to open due to not satisfying conditions as stipulated in Article 29.2, the third meeting shall be called for within 20 days from the proposed opening date of the second meeting. The third meeting is always entitled to open regardless of the number of participating Shareholders as well as their voting Shares;
Article 33. Steps and Voting Methods of Shareholder Meetings
33.1 Prior to the opening of the Shareholder Meeting, the registration of the present Shareholders must be done and continued until all eligible present Shareholders have been registered. Upon registration, the present Shareholders shall be provided with voting cards corresponding with the number of issues to be voted in the meeting agenda.
33.2 The Chairman, the secretary and the voting committee of the Shareholder Meeting shall have the following duties and powers:
(a)The Chairman shall chair a Shareholder Meeting which is called by the Board of Management. In the case where the Chairman is absent or temporarily incapable to act, the remaining Board Members shall select one of them to chair the Shareholder Meeting. If no one is selected to chair the Shareholder Meeting, the highest ranking Board Member shall temporarily chair the Shareholder Meeting in oder to vote for a person to chair the Shareholder Meeting who must receive the highest votes. In other cases, the person who signs the decision to call for the Shareholder Meeting shall temporarily chair the Shareholder Meeting to vote for a person to chair the Shareholder Meeting who must receive the highest votes.
(b) The secretary who is nominated by the person chairing the Shareholder Meeting shall be in charge of preparing the meeting minutes.
(c) The voting committee comprises of no more than three persons who are elected by Shareholder Meeting based on recommendation of the person chairing the Shareholder Meeting.
(d) The meeting agenda and contents must be approved by the Shareholder Meeting at the opening session. The meeting agenda must detail time-schedule for discussing each issue.
(e) The person who chairs the Shareholder Meeting and the secretary of the Shareholder Meeting are entitled to conduct activities necessary to ensure that the meeting is working properly in complying with the approved agenda as well as desires of the present Shareholders.
33.3 The Shareholder Meeting shall discuss and vote for each of the issues as printed in the meeting agenda. The voting shall be done by the way of firstly collecting voting cards “for”, then “against” and finally “blank”. The voting results must be announced by the chairman at the closing time of the Shareholder Meeting.
33.4 The Shareholders or authorized representatives who come after the opening of the meeting are also entitled to register and can vote afterward. The person who chairs the Shareholder Meeting is not entitled to suspend the Shareholder Meeting in order to enable the late comers to register. In this case, the validity of the voting that has been already done remains unaffected.
333.5 The person chairing a Shareholder Meeting is entitled to delay opening time or change venue of the same in any of the following cases:
(a) There is not enough space for the participants at the relevant meeting venue; or
(b) One or more participants disturb or obstruct the Shareholder Meeting so that it cannot be able to be proceeded fairly and properly.
The delay can not exceed 3 days from proposed opening date of the meeting.
33.6 If the delay or suspension is made by the person chairing the relevant Shareholder Meeting in contrary to Article 30.5, the present Shareholders shall elect one Shareholder to chair the Shareholder Meeting and the validity of the subsequent voting remains unaffected.
Article 34. Passing Decisions of Shareholder Meetings
34.1 Decisions of the Shareholder Meeting are passed in form of voting a meeting or consulting opinions in writing. Decisions shall be passed by voting at Shareholder Meeting in relation to following contents:
(b) amendment and/or repeal or alteration of the Company Charter;
(c) sale, lease, exchange, mortgage, pledge or any disposition in equivalent to [70]% or more of the total value of assets recorded in the latest financial report of the Company including the goodwill of the Company;
(d) incurring and creating indebtedness and issuance of new shares or securities;
(e) merger or consolidation of the Company with any other company, or acquisition of the shares or assets of another entity, or entering into a joint venture;
(f) investment of corporate funds in any other corporation or new business or for any purpose other than the primary purpose for which it was organized;
(g) filing of a petition for voluntary reorganization or suspension of payment of its obligations, or an application for the appointment of a receiver or trustee itself or for any part of its properties or an application for the liquidation or dissolution of the Company, or a partial suspension of business operation;
(h) appointment or removal of Board Member, Supervisor, and external auditors;
(i) approval of any sale or disposition of strategic assets or transfer of shares of any subsidiary (including a contribution to a joint venture).
(j) declaration of dividends;
(k) any action which is not in consonance with the declared economic policies of the Company;
(l) the creation of reserves;
(m) the modification or reversal of any decision made or taken by the Board of Directors; and
(n) the determination of the compensation of the Board of Directors.
34.2 Decisions of the Shareholder Meeting shall be passed by at least [51]%[15] of total votes of the Shareholders present in the Shareholder Meeting.
34.3 A decision that is passed by a number of participating Shareholders owning 100% of total voting Shares shall be Lawful and valid even if procedure for convening the meeting, agenda and formality of the meeting are not strictly in compliance with the provisions of the Laws and this Charter.
34.4 Decisions of Shareholder Meeting shall be passed in form of collection of opinions in writing by a number of Shareholders owning at least [51]%[16] of the total votes.
34.5 Passed decisions of Shareholder Meeting must be notified to Shareholders eligible to attend the Shareholder Meeting within fifteen (15) days from the passing date.
Article 35. Board of Management
35.2 The Board of Management shall have at least [2][17] Board Members. The certain numbers of Board Members shall be decided by the Shareholder Meeting from time to time.
35.3 The Board of Management shall have following rights and obligations:
(a) To determine the development strategy and the annual business plan of the Company;
(b) To make proposals with regard to the classes of Shares and the total number of authorized offered Shares of each class for sales;
(c) To decide on new authorized offered Shares of each class; mobilization of capital in other forms;
(d) To set the offering price of Shares and bonds;
(e) To determine the Shares buy-backs as stipulated in Article 19.2;
(f) To decide on investment projects and investment plans for projects under its authority pursuant to the Laws and this Charter;
(g) Unless otherwise stipulated in Articles 42.1 and 42.3, to make decisions on market promotion, marketing and technology solutions, to approve all contracts of sales, purchases, borrow, lend or any other classes of contracts worth [50]% [18] or more of the total value of assets recorded in the latest financial report of the Company;
(h) To appoint and dismiss General Director and key managers of the Company; to decide salary and other benefits applied to such persons; to appoint the authorized representative to exercise the ownership rights of SharesShares or the rights of capital contribution in other companies; to decide allowances and other benefits to be applied to such persons;
(i) To supervise and guide the General Director and other managers in running the day-to-day business of the Company;
(j) To approve the organizational structure, internal working rules; to make decisions on the establishment of branches, representative offices and subsidiaries; to decide the contribution of capital to or buying of SharesShares issued by other companies;
(k) To approve the agenda, materials of the Shareholders' Meeting; to call for Shareholder Meeting or be in charge of consulting opinion in writing when passing decisions of Shareholder Meeting;
(l) To submit Annual Financial Account to the Shareholders Meeting;
(m) To make decisions on the amount of dividend, time and procedure for payment of such dividend or method for settlement of losses; and
(n) To make proposal with respect to reorganization or dissolution of the Company.
36.2The Chairman shall have the following rights and obligations:
(a) To prepare programs and working plans of the Board of Management;
(b) To prepare agenda, contents and materials for the Board Meetings;
(c) To call for the Board Meeting;
(d) To chair the Board Meeting and the Shareholder Meeting if the Board of Management calls for the Shareholder Meeting;
(e) To be in charge of passing decisions of the Board of Management; and
(f) To supervise the implementation of decisions passed by the Board of Management;
37.1 Board Meetings shall be held as often as business requires, but at least once every quarter, and shall be presided over by the Chairman. The Chairman shall call for a Board Meeting at the request of any of (i) the General Director; (ii) any two Board Members; or (iii) the Supervisory Board.
37.2 Board Meetings shall be called for by not less than seven days’ written notice given in accordance with this Article 34.1 including particulars of the place, date, time and agenda for the meeting. Any notice shall include an agenda identifying in reasonable detail the matters to be discussed at the meeting together with copies of any relevant papers to be discussed at the meeting.
37.3 Board Meetings may be held any place within and outside the territory of Vietnam as the Board of Management may determine from time to time.
37.4 The Board Members may attend a Board Meeting by telephone or other electronic means of communication provided every such Board Member is able to hear and be heard by all the other Board Members attending in person. Attendance by such means shall constitute attendance in person.
37.5 If a Board Member is unable to attend any Board Meeting, he may appoint a proxy (who may or may not be another Board Member) in writing to attend in his place and vote on his behalf at such meeting. The proxy may be appointed for a specific Board Meeting or for any number of Board Meetings until further notice by the relevant Board Members. Every instrument of appointment shall be sent or delivered to the Chairman at the head office prior to the commencement of such Board Meeting. A proxy shall have one vote for each Board Member whom he represents and one vote for himself if he is also a Board Members in his own right.
37.6 Any manager may be required by any Board Member to attend any Board Meeting in order to report directly to the Board of Management with respect to any matters concerning the Company or the business of the Company for which they have responsibility or in connection with which they have knowledge or skill and shall provide the Board of Management with all additional information and/or documents concerning the operation of the Company and relevant to a Board Meeting as they may request.
37.7 The Board of Management may appoint a secretary (the "Board Secretary"). The Board Secretary shall keep a record of all proxies, meetings, resolutions passed, notices served, changes in the Charter and other matters of importance concerning the administration of the Company.
37.8 The Board Secretary may be removed from office and replaced at any time by the Board of Management.
37.9 The Board Secretary shall prepare complete and accurate minutes of each Board Meeting in English and Vietnamese including the names of those in attendance, the date and place of the Board Meeting, the matters discussed and resolutions passed. Notwithstanding the foregoing, if the Board Secretary cannot attend a Board Meeting, the Board of Management may appoint a temporary secretary in his or her place for the purposes of that meeting.
37.10 The Board Secretary shall circulate the minutes to all of the Board Members as soon as practicable after each meeting and, in any event, no later than seven days after the relevant meeting. The minutes of each Board Meeting shall be signed by the Chairman with a copy supplied to each Board Member and the original shall be filed at the head office of the Company or such other address as the Board of Management shall direct.
37.11 Reasonable expenses of Board Members incurred in connection with attendance at Board Meetings including travel and lodging shall be reimbursed by the Company in accordance with the policies on the reimbursement of such expenses passed by the Company from time to time.
Article 38. Board Meeting Quorum
35.1 he quorum for a valid Board Meeting shall be achieved if three-fourths (3/4) of the total number of the Board Members in office are present in person or by proxy.
35.2 Where the stipulated numbers are not present at the meeting called for as stipulated in Article 35.1, the second meeting shall be called for within fifteen (15) days of the date of the intended first meeting. In this case, the meeting shall be conducted when there are more than one half of the total Board Members.
Article 39. Voting at Board Meetings
Each Board Member shall have one vote. Issues arising out at a Board Meeting shall be decided by a simple majority of votes of attending Board Members (in person or represented by proxy). In the case of an equality of votes, the Chairman shall have a casting vote.
Article 40. Minutes of the Shareholder Meeting and Minutes of the Board Meeting
40.1 All Shareholder Meetings and Board Meeting must be recorded in the Minutes Book. The meeting minutes must be completed and approved before the closing of the relevant meeting.
40.2 The chairperson of the relevant meeting and the secretary shall be jointly responsible for the accuracy and truthfulness of the relevant meeting minutes. The meeting minutes must be sent to all Shareholders and Board Members within 15 days from the closing date of the relevant meeting.
Article 41. Written Resolutions without Board Meeting
A resolution in writing signed by all of the Board Members shall be valid and effectual as if it had been passed at a meeting of the Board of Management duly called for and held. Such resolution may consist of one or more documents in like form each signed by one or more Board Members. The expressions "in writing" and "signed" shall include approval by electronic or facsimile transmission.
42.3 The term of the General Director is no more than 5 years and can be renewed unlimitedly.
42.6 The General Director shall have following rights and obligations:
(a) To make decisions on all matters arising from the day-to-day business operation of the Company without obtaining passing decision of the Board of Management.
(b) To arrange for the implementation of decisions passed by the Board of Management;
(c) To arrange for implementation of business and investment plans of the Company;
(d) To make proposals as to the organizational structure and the internal management rules of the Company;
(e) To appoint, dismiss or remove managers of the Company, except those whose appointment, dismissal or removal are within the power of the Board of Management;
(f) To determine the salary and other allowances of employees of the Company, including managers whose appointment is within the power of the General Director;
(g) To hire employees;
(h)To make proposal as to payment of dividend or settlement of losses of the Company;
(i) To execute all the contracts and transactions of the Company; and
(j) To exercise such other tasks and duties under decisions of the Shareholder Meeting and/or the Board of Management in accordance with this Charter and the Laws.
Article 43. Salaries, Allowance and Other Benefits of Board Members and General Director
The Company is entitled to pay the remuneration, salaries to the Board Members and General Director and other Managers according to the performance and profits of the business. Remuneration of the Board of Management and salaries of General Director or other managers of the Company shall be deducted from business expenses of the Company and shall be presented in a separate section of the Company’s annual financial statement and reported to the annual Shareholder Meeting.
Article 44. Duties of Managers
(a) To exercise rights and obligations in accordance with provisions of the Laws, this Charter and decisions of Shareholder Meeting;
(b) To exercise rights and obligations in a fiduciary, diligent and optimal manner for the purpose of maximizing legitimate benefit of the Company and its Shareholders;
(c) To pledge loyalty toward the Company and its Shareholders; do not make use of information, know-how and business opportunity of the Company as well as abuse their position, power and assets of the Company for the benefit of themselves or other individual or organization; and
(d) To notify promptly, fully and accurately the Company of those enterprises in which they or their Connected Persons are sole owner or own a dominant capital contributor or major Shareholder. This notification must be displayed at the head office or branches of the Company.
Article 45. Limitations on Contracts
45.1 The following contracts must be approved by the Shareholder Meeting:
(a) Contracts between the Company and a Shareholder holding more than 35% of the total Ordinary Shares or a Connected Person of that Shareholder; or
(b) Contracts between the Company and any Board Member or the General Director; or
(c) Contracts between the Company and any Connected Person of any Board Member and/or the General Director.
45.2 Contracts and transactions in equivalent to less than [50]%[19] of total value of assets as stated in the latest financial report of the Company shall be approved by the Board of Management. In this case, the legal representative of the Company must send draft contracts or the brief contents thereof to all Board Members along with displaying them at the head office or branches of the Company. The Board of Management shall approve such contracts or transactions within 15 days from the date of displaying. Any Board Member who has related benefits is not allowed to vote at the relevant Board meeting.
45.3 Other contracts and transactions except those stipulated in Article 42.3 shall be approved by the Shareholder Meeting prior to signing. The Board of Management shall be in charge of submitting draft contracts or explain the main content of intended transactions during the Shareholder Meeting or collecting Shareholders’ opinion in writing. In this case, the Shareholders who have related benefits are not allowed to vote.[20] Contracts or transactions shall be approved by a number of Shareholders owning at least [65] %[21] of the total votes.
Article 46. Board of Supervision
46.1 The Board of Supervision shall comprise of [3][22] members elected by Shareholder Meeting and at least one member must have accounting expertise. Supervisors shall appoint one of them who is also the Shareholder to be the head of the Board of Supervision.
46.2 The Board of Supervision has the following rights and obligations:
(a) Reviewing the reasonableness, Lawfulness, trustworthiness and diligence of the business management and operation, accounting books, and financial statements;
(b) Appraising the reports on business operation, Annual Financial Account and half-year financial reports of the Company and the report on evaluation of performance of the Board of Management. To submit report on appraising business operation, Annual Financial Account l and half-year financial report, performance of the Board of Management to the Shareholder Meeting;
(c) Check and review accounting books and other documents of the Company or matters particularly related to the management and operation of the Company if necessary or in pursuant to a decision of the Shareholder Meeting, or at the request made by the Shareholder or group of ShareholdersShares; the investigation of the Board of Supervision as stipulated in this Article must be carried out in a manner that does not hinder the usual operation of the Board of Management as well as interrupt the normal business operation of the Company; and
(d) Recommend the Board of Management or the Shareholder Meeting to take measures on adjusting and improving structure of organizational management of the Company.
(e) Obligations in relation to the provision of information to the Board of Supervision:
(f) The Board of Management and the Board Members or General Director must report and provide fully and promptly information and documents in relation to the management and business performance of the Company upon a request made by the Board of Supervision except otherwise decided by Shareholder Meeting; and
(g) The Board of Supervision and its members are not allowed to disclose the information of the Company.
46.3 A Supervisor must:
(a) be a person who is than 21 years old, has capacity for civil acts and is not prohibited from establishing and managing enterprises pursuant to the Laws;
(b) not be the Connected Person of the Board Members, the General Director and any other Managers; and
(c) not hold any management positions of the Company including the Board Members, the General Director.
46.4 The term of office of the Board of Supervision, working mechanism, remuneration and benefits for Supervisors are decided by Shareholder Meeting. The Board of Supervision shall be responsible to the Shareholder Meeting for breaches in the course of performing its duties.
47.1 The Company is required to keep the following documents:
(a) Investment Certificate;
(b) Charter of the Company and its amendments, supplements; Internal rules; book of Shareholder registration;
(c) Other licenses granted by the State Authority;
(d) Documents and materials proving the ownership of the Company toward its assets;
(e) Meeting Minutes of Shareholder Meeting, the Board Meeting and decisions of the Company;
(f) Announcement for issuance of securities;
(g) Reports of the Board of Supervision, conclusions of inspectorate agencies and independent auditing agencies;
(h) Accounting books, invoices and receipts, annual financial reports; and
(i) Other documents as provided by Laws.
V. ACCOUNTS, ACOUNTING AND AUDITING
The Company will open its accounts in one or more credit institutions (“Banks”) permitted to operate in Vietnam. With the approval of the bodies with jurisdiction, the Company can open an account abroad as pursuant to the Laws, if necessary.
The Company’s fiscal year begins on January 1 and ends on December 31 of the same year. The first fiscal year shall commence on the date of the Investment Certificate and shall end on 31 December of that year.
Article 50.Accounts and Records
50.1 The Company’s accounting system uses Vietnamese Accounting Standards (VAS) and any other system approved by the Ministry of Finance. The currency used in the accounting books and accounts shall be Dong and may be converted into Dollars in unofficial accounting books and accounts for internal reference within the Company.
50.2 All accounting records, vouchers, books and statements of the Company shall be made and kept in the Vietnamese language with English translations.
50.3 Any document, notice or formal communication that is provided to the Shareholders, the Board of Management or the Shareholder Meeting shall be in the Vietnamese language and must be accompanied by an English translation. In the event of any conflict between the English text and the Vietnamese version, the English version shall prevail.
51.1 The General Director shall, within six months from the end of each fiscal year, submit an Annual Financial Account to the Shareholder Meeting for approval.
51.2 The Annual Financial Account shall include a report on the results of business operations, reflecting honestly and objectively the profit and loss situation of the Company in the fiscal year; a balance sheet showing honestly and objectively the operating state of the Company up to the date of the report; a cash flow statement; and an explanation of the Annual Financial Account.
Article 52. Information Release and Public Announcements
The Annual Financial Account and other supplementary documents must be publicized according to the regulations (if any) of the Licensing Authority and submitted to the tax authorities and Licensing Authority as requested by the Law.
53.1 At the annual Shareholder Meeting, an independent auditing company authorized to legally operate in Vietnam will be appointed to perform the Company’s auditing activities for the next fiscal year in accordance with the terms and conditions agreed to by the Board of Management. Regarding the first fiscal year, the Board of Management shall assign an auditing company to carry out the Company’s auditing activities after the date of the Investment Certificate.
53.2 The Company must prepare and submit the Annual Financial Account to the independent auditing company after the conclusion of the fiscal year.
53.3 The Company’s independent auditing company shall examine, certify and report on the Annual Financial Account explaining the Company’s income and expenditure, generate an auditing report and present that report to the Board of Management within six months after the fiscal year closes.
53.4 A copy of the auditing report must accompany each copy of the Company’s annual accounting reports.
VI. RE-ORGANIZATION AND DISSOLUTION
Article 54.Re-organization of Company
The procedures for division, separation, consolidation, merger and transformation of the Company shall follow the provisions of Law on Enterprises.
Article 55. Termination of Operations
The Company can dissolve or terminate its operations under the following conditions:
(a) Upon declaration of bankruptcy of the Company.
(b) The Company has less than three Shareholders for six consecutive months.
(c) The Shareholder Meeting decides to dissolve the Company.
(d) Upon decision of the relevant State Agencies to revoke the Investment Certificate by reason of serious violation of the Laws and/or stipulation of the Investment Certificate.
56.1 As soon as practicable following any termination event specified in Article 52, the Shareholder Meeting shall pass a resolution on dissolution of the Company. Such a decision shall include the reasons for the dissolution, the schedule and procedures of liquidation of contracts and repayment of debts of the Company and other terms to the extent required by the Laws.
56.2 Within seven (7) days from the date of issuance, or such a longer period permitted by law, the resolution on dissolution shall be sent to the Licensing Authority (and/or the relevant business registration authority if required by law), all creditors, other interested parties and employees of the Company as well as posted at the Head Office and any branch office of the Company. Notice of dissolution will be published in the local newspaper if required by law.
56.3 Promptly upon liquidation being directed in accordance with Article 49.1 hereof, the Board of Management shall appoint three members to a liquidation committee (hereinafter the “Liquidation Committee”).
56.4 The Liquidation Committee shall have all such powers permitted by the Laws as are necessary for winding up the affairs of the Company and distributing its assets as economically as possible and, subject at all times to the requirements of the Laws, all such powers as the Board of Management may delegate to the Liquidation Committee.
56.5 All reasonable fees and expenses incurred in the liquidation of the Company shall be borne by the Company in priority over all other liabilities of the Company. All other liabilities shall be paid in the following priority:
(a) Salaries and social and health insurance premiums in respect of its employees;
(b) Outstanding taxes payable to the State of Vietnam;
(d) Loans made to the Company by unsecured creditors and secured creditors to the extent their loans are not satisfied out of the enforcement of their security and including payments made by guarantors in discharge of such loans;
(e) Other liabilities; and
(f) The remains after the payment of Items (a) to (e) above will be divided among Shareholders in accordance with Article 7.3(c).
56.6 The Liquidation Committee has the responsibility to report to the business registration authorities on its day of establishment and the commencement day of operations. From that day, the Liquidation Committee will represent the Company in all matters relating to the liquidation of the Company before the Court and other administrative authorities.
57.1 In addition to all other sums due hereunder or provided for in this Charter, the Shareholder (the "Indemnifying Shareholder" for purposes of indemnification under Article 54.1) agrees to indemnify and hold harmless the Company and other Shareholder (each, an "Indemnified Person" for purposes of indemnification under Article 54.1) to the fullest extent permitted by the Law from and against all losses, claims, damages, expenses (including, without limitation, reasonable fees, disbursements and other charges of counsel) or other liabilities (collectively, "Liabilities") resulting from or arising out of any breach of any representation or warranty, covenant or agreement of the Indemnifying Shareholder in the Charter, or any legal, administrative or other actions, proceedings or investigations (whether formal or informal), or written threats thereof, based upon, relating to or arising out of the Charter or any transaction contemplated hereby or any Indemnified Shareholder's role therein or in any transaction contemplated hereby; provided, however, that the Indemnifying Shareholder shall not be liable under Article 54.1 to an Indemnified Person (i) for any amount paid in settlement of claims without the Indemnifying Shareholder's consent (which consent shall not be unreasonably withheld), (ii) to the extent that it is finally judicially determined that such Liabilities resulted primarily from the wilful misconduct or gross negligence of such Indemnified Person, or (iii) to the extent that it is finally judicially determined that such Liabilities resulted from the breach by such Indemnified Person of any representation, warranty, covenant or other agreement of such Indemnified Person contained in this Charter.
57.2 Each Indemnified Person under this Article 54 will, promptly after the receipt of notice of the commencement of any action, investigation, claim or other proceeding against such Indemnified Person in respect of which indemnity may be sought from an Indemnifying Shareholder under this Article 54, notify the Indemnifying Shareholder in writing of the commencement thereof. The omission of any Indemnified Person to so notify the Indemnifying Shareholder of any such action shall not relieve the Indemnifying Shareholder from any liability which it may have to such Indemnified Person.
Article 58. Dispute resolutions
Any dispute, controversy or claim arising out of or relating to the Charter shall be firstly resolved by amicable negotiation and conciliation between the parties in dispute. If no agreement in respect of the dispute, controversy or claim has been reached via such amicable negotiation and conciliation, such dispute, controversy and/or claim shall be finally settled by the Vietnam International Arbitration Centre (VIAC) at the Vietnam Chamber of Commerce and Industry in accordance with its Rules of Arbitration. The language to be used in the arbitration proceedings shall be English. The arbitral award shall be final and binding upon the relevant parties.
Article 59. Validity of the Charter
This Charter shall become effective from the date of the Investment Certificate by the Licensing Authority.
If any of the provisions of this Agreement becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired.
Article 61. Amendment and supplementation of the Charter
Any amendment or supplementation of the Charter shall be valid if it has been passed lawfully by the Shareholder Meeting and made in writing.
Except as expressly provided to the contrary, the rights and remedies stipulated in this Charter are cumulative and not exclusive of any rights and remedies provided by the Law.
Article 63. Language and Counterparts
The Charter is written in 5 Vietnamese originals and 5 English originals of the same validity. Each Founding Shareholder keep 1 orginal English and 1 original in Vietnamese. 1 original shall be kept at the Head Office and the last one shall be submitted to the Licensing Authority. In event of any discrepancy between the 2 originals, the English original shall prevail.
IN WITNESS WHEREOF, the Founding Shareholders have signed and sealed this Charter, and/or caused this Charter signed and sealed by their authorised representatives on the date as set forth under their respective signatures hereunder.
|
For ___ (as Founding Shareholder)
_______________________________ Name: ___ Title: ___ Date: __________________________ |
For ___ (as Founding Shareholder)
_________________________________ Name: ___ Tile: President
Date: ____________________________ |
|
___ (as Founding Shareholder)
_______________________________ Date: ____________________________ |
___ (as legal representative of ___)
_________________________________ Date: ____________________________ |
[1] Please noted that those names are proposed, please confirm names of the Company.
[2] Please provide the head office’ address of the Company.
[3]Please confirm. The legal representative of the Company may be the Chairman or the General Director.
[4] Except for dividend and redeemable preference shares, the Company may also issue voting preference share. However, a voting preference share is valid within only 3 years from the date of the investment certificate. It will be converted automatically to into an ordinary share upon expiry of that 3 year period.
[5] Please confirm
[6] Please confirm
[7] Please be noted that this Article does not differentiate ratio of shareholder of ordinary Shares.
[8] Please be noted that each Board Member have one vote in the Board Meeting according to Article 108.3 of the Law on Enterprises.
[9] Please be noted that there is no restriction relating to transfer of Shares of non-founding shareholder and transfer of ordinary Shares of founding shareholder after 3 years of the Investment Certificate.
[10] Ex: The Offerees must buy all of Offered Shares or must buy at least a certain Offered Shares.
[11] This ratio can be changed.
[12] The Shareholder can decide the number of Shares and number of vote represented by each authorized representative.
[13] According to Paragraphs 503 and 504 of the Report of the Working Party on the Accession of Viet Nam and the Annex attached Resolution 71, the shareholders are entitled to provide the other ratio. Please confirm this ratio.
[14] According to Paragraphs 503 and 504 of the Report of the Working Party on the Accession of Viet Nam and the Annex attached Resolution 71, the shareholders are entitled to provide the other ratio. Please confirm this ratio.
[15] According to Paragraphs 503 and 504 of the Report of the Working Party on the Accession of Viet Nam and the Annex attached Resolution 71, the shareholders are entitled to provide the other ratio. Please confirm this ratio.
[16] According to Paragraphs 503 and 504 of the Report of the Working Party on the Accession of Viet Nam and the Annex attached Resolution 71, the shareholders are entitled to provide the other ratio. Please confirm this ratio.
[17] Please confirm.
[18] the shareholders are entitled to provide the smaller ratio to expand Board of Management’s rights. Please confirm the other ratio.
[19]The shareholders are entitled to provide the smaller ratio. Please confirm this ratio.
[20] Please noted that in this case the Company cannot execute this transaction because except ___ and its authorized representative, no shareholder is entitled to vote.
[21] According to Paragraphs 503 and 504 of the Report of the Working Party on the Accession of Viet Nam and the Annex attached Resolution 71, the shareholders are entitled to provide the other ratio. Please confirm this ratio.
[22] The number of Supervisor can be changed.
