CHARTER OF…………………….. LIMITED LIABILITY COMPANY

 

The Members, comprising:

No.	Name of Members	Nationality	Date of bỉth (for individuals)	Date of issue, place of issue of ID card or passport (for individuals) or Business Regsistration Certificate number (for organizations)		Permanent Residence Address (for individuals) / registered address (for organization)
				Number	Date, place of issue
(1)	(2)	(3)	(4)	(5)	(6)	(7)
1	……….	……….	……….	……….	……….	……….
2	……….	……….	……….	……….	……….	……….

 

Decide to establish a Limited Liability Company (hereinafter referred to as “the Company”), operating in accordance with the Law No. 68/2014/QH13 of the National Assembly, dated 26 November 2014, on Enterprises (Law on Enterprises) and the following terms of this Charter (the Charter).

CHAPTER I – COMPANY

ARTICLE 1. LEGAL STATUS AND LIABILITY

1.1       The Company is established in the form of a limited liability company with two or more members, effective from the date of the Enterprise Registration Certificate, and is subject to the provisions of the Laws of Vietnam.

1.2       All operations of the Company are subject to the Laws of Vietnam, the Enterprises Registration Certificate, this Charter, and any other State Agency licence, or permit which may be necessary for the purposes of conducting the Company’s business.

1.3       The Members are liable for debts and other asset obligations of the Company to the extent of the amount of capital contributed to the Company’s Charter Capital.

ARTICLE 2. NAME AND HEAD OFFICE ADDRESS

Name of the Company in Vietnamese: Cong Ty Trach Nhiem Huu Han [insert the name of the company in Vietnamese].

Name of the Company in foreign language: [insert the name of the company in English] Limited Liability Company.

Name of the Company in abbreviation: [insert the abbreviation name] Co., Ltd.

The Company is located at the registered address: [insert the address where enterprise’s head office located].

The Company may, upon the decision of the Members’ Council, and subject to any approval required by the Laws of Vietnam, change its head office and/or establish branch and/or representative offices or other places of business in Vietnam or elsewhere.

ARTICLE 3. SCOPE OF BUSINESS OF THE COMPANY

The Company is established to carry out the following business activities:   

No.	Business lines	Business codes
	………..	………. (main)
	………..	………..
	………..	………..

 

ARTICLE 4. LEGAL REPRESENTATIVE

4.1              Legal Representative of the Company shall:

(a)                sign contracts on behalf of the Company;

(b)               represent the Company to exercise the rights and perform the obligations arising out of transactions of the Company;

(c)                represent the Company to act as plaintiff, defendant or person with related interests and obligations in arbitration proceedings or courts;

(d)               exercise other rights and perform other obligations in accordance with the Laws of Vietnam.

4.2              The Company has one legal representative[s] (Legal Representative), being:

Mr./Ms. [insert the name of the Legal Representative]                                   

Date of birth:                          [insert the date of birth]          

Nationality:                             [insert the nationality]

Passport No.:                           [insert the number of the Passport]       

Date of issuance:                    [insert the date to be issued the Passport]

Body of issuance:                  [insert the name of the body issued the Passport]

Permanent Residential Address:         [insert the address where he/she permanently residents]

Current Residential Address:                         [insert the address where he/she currently residents]

Telephone:                               [insert the telephone number]

Email :                                     [insert email].

 

CHAPTER II – CAPITAL

 

ARTICLE 5. CHARTER CAPITAL

5.1              The Charter Capital of the Company is VND [insert the amount of money] ([insert the amount of money in words]) equivalent to USD [insert the amount of money] ([insert the amount of money in words]), in which:

No.	Members	Capital					Capital Contribution Ratio	Date of capital contribution
		Total	In which
			Cash  (VND)	gold	Foreign exchange	Other asser
11		5.0.000	5.000.000.000	0	0	0	50%	20/02/2018
2		0.000	000	0	0	0	50%

 

5.2              The Charter Capital may be increased or decreased as required by the operation of the Company and under the decision of the Members’ Council in accordance with the laws.

ARTICLE 6. CAPITAL CONTRIBUTION AND CERTIFICATE OF CAPITAL CONTRIBUTION

6.1              Members of the Company must contribute their Proportion of Capital Contribution to the Company in full and in the type of assets as undertaken when registering establishment of the Company, within ninety (90) days from the date of issuance of the Enterprise Registration Certificate. A Member of the Company is only permitted to pay its Proportion of Capital Contribution to the Company by assets different from the type of assets undertaken if the majority of other members so agree. Within such period, the Members shall have the rights and obligations corresponding to their ratios of capital contribution as undertaken to be paid.

6.2              Where a Member fails to contribute in full its/his/her Proportion of Capital Contribution as undertaken within ninety (90) days from the issuance of the Enterprise Registration Certificate, it shall be dealt with as follows:

(i)                 the Member failing to contribute capital as undertaken shall automatically cease to be a Member of the Company;

(ii)               the Member failing to pay in full its Proportion of Capital Contribution as undertaken shall have the rights corresponding to the Proportion of Capital Contribution already paid;

(iii)             the Proportion of Capital Contribution having not yet been paid by a Member shall be offered for sale in accordance with a decision of the Members' Council.

6.3              If a Member fails to contribute capital or fails to contribute in full the amount of capital undertaken, the Company shall register adjustment of its Charter Capital and/or capital contribution ratios of Members equal to the amount of contributed capital within sixty (60) days from the last day on which the proportion of Capital Contribution is required to be fully paid must be made. Any Member failing to contribute or failing to contribute in full the amount of capital undertaken must be responsible for financial obligations of the Company in proportion to the capital contribution undertaken which arose prior to the date on which the Company registers change of the Charter Capital and Proportion of Capital Contribution of Members.

6.4              Once the Charter Capital has been fully contributed by the Members, the Company will issue to each Member a certificate of capital contribution signed by the Legal Representative of the Company and stamped with the official seal of the Company (Certificate of Capital Contribution) corresponding to the value of the proportion of capital which has been contributed with the following main contents:

(a)                Name, enterprise code number and head office address of the Company;

(b)               Charter Capital of the Company;

(c)                Full name, permanent residential address, nationality, number of citizen’s identity card, people’s identity card, passport or other lawful personal identification of a Member being an individual; name, number of establishment decision or enterprise code number and head office address of a Member being an organisation;

(d)               Proportion of Capital Contribution[M1] , value of [M2] the Member’s Capital Contribution;

(e)                Number and date of issuance of the Certificate of Capital Contribution[M3] ;

(f)                Full name, signature of the Legal Representative of the Company.

The Aforesaid Certificate will be reissued[M4]  by the Company at the Member’s request, if it is lost, ruined, damaged or otherwise destroyed.

ARTICLE 7. MEMBERS’ REGISTER

7.1              The Company shall establish a Members’ Register immediately after issuance of the Enterprise Registration Certificate. Such book shall include the following contents:

(a)                the name, enterprise code number and address of the head office of the Company;

(b)               the name, permanent residential address, nationality, number of citizen’s identity card, people’s identity card, passport or other lawful personal identification of a Member being an individual; name, number of establishment decision or enterprise code number and head office address of a Member being an organisation;

(c)                the Proportion of Capital Contribution and value of contributed capital, time of capital contribution; types of asset contributed as capital, quantity and value of each type of asset contributed as capital of each Member;

(d)               the signature of Members being individuals or of legal representative of Members being organisations; and

(e)                the number and the issuance date of the Certificate of Capital Contribution of each of the Members.

7.2              The Members’ Register shall be retained at the head office of the Company.

ARTICLE 8. REDEMPTION OF PROPORTION OF CAPITAL CONTRIBUTION

8.1              A Member shall be entitled to request the Company to redeem its/his/her Proportion of Capital Contribution subject to its/his/her disagreement by votes towards any and all decisions made by the Members’ Council on the following matters:

(a)        an amendment of, and/or supplementation to, the contents of the Company’s Charter with respect to rights and obligations of the Members and the Members’ Council;

(b)        reorganisation of the Company;

            (c)        any other decision which shall result in the loss of benefits for the Members.

8.2              Such a request for redemption of the proportion of Capital Contribution shall be made in writing and submitted to the Company within fifteen (15) days from the approval date of the decisions on the matters as provided foregoing.

8.3              The price of redemption of Proportion of Capital Contribution shall be in accordance with the Members’ agreement.  In case of failure to reach such agreement, redemption of Proportion of Capital Contribution shall be made at market price within fifteen (15) days from the date of receipt of such redemption demand.

8.4              The Member shall assign his/her Proportion of Capital Contribution to the other Member(s) or to third part(ies) or parties should the Company fail to redeem the Proportion of Capital Contribution as regulated above.

8.5              Payment may only be made if, after the full payment for such redeemed Proportion of Capital Contribution, the Company is still able to meet all debts and other property obligations.

ARTICLE 9. ASSIGNMENT OF PROPORTION OF CAPITAL CONTRIBUTION 

9.1.            Subject to the provisions of this Charter, any of the Members registered in the Members’ Register as the owner of the Proportion of Capital Contribution in the Charter Capital shall be entitled to assign all or part of its/his/her Proportion of Capital Contribution to any person or legal entity.

9.2.            Any instrument of assignment of the Proportion of Capital Contribution must be in writing and executed by the transferor and transferee. The Company shall carry out all necessary procedures under the Laws of Vietnam for registration of such assignment of Proportion of Capital Contribution at the competent Licensing Authority. The transferor still has the rights and obligations owed to the Company corresponding to the relevant Proportion of Capital Contribution until the details of the transferee are fully recorded in the Members’ Register of the Company.

9.3.            Except otherwise stated in this Charter, a Member wishing to assign the whole or part of its/his/her Proportion of Capital Contribution as a transferor must first offer its/his/her Proportion of Capital Contribution to other Members of the Company in proportion to their respective Proportion of Capital Contribution in the Charter Capital on equal terms. Within thirty (30) days after receipt of the offer, these Members shall have the right to accept such offer. If all or any amount of the Proportion of Capital Contribution of the transferor remain unaccepted by other Members at the expiry of the said thirty (30) days, such remaining or whole amount of the Proportion of Capital Contribution may be offered to a third party or parties provided that the offer to any third party shall contain the same conditions in the previous offer.

ARTICLE 10. DEALING WITH PROPORTION OF CAPITAL CONTRIBUTION IN OTHER CIRCUMSTANCES

10.1.        Where a Member being an individual dies, his or her heir under a will or at law shall be a Member of the Company. Where a Member being an individual is declared missing by a court of law, the person managing the property of such Member as stipulated in the civil law shall be a Member of the Company. 

10.2.        Where the capacity for civil acts of a Member is restricted or lost, the rights and obligations of such Member in the Company shall be exercised by his/her guardian. 

10.3.        The Proportion of Capital Contribution of a Member shall be redeemed by the Company, or assigned in accordance with provisions of this Charter in the following cases:

(a)        the heir to the deceased Member does not wish to become a Member of the Company;

(b)        A donee as stipulated in Clause 10.5 of this Article is not approved by the Members’ Council to become a Member; or 

(c)        A Member being an organisation is dissolved or bankrupted.

10.4.        Where a Member being an individual dies intestate or where his or her heir disclaims the inheritance or the right to inherit is deprived, such Proportion of Capital Contribution shall be dealt with in accordance with provisions of civil legislation.

10.5.        Any of the Members shall have the right to donate whole or part of their Proportion of Capital Contribution in the Company to another person.

                Where the donee is the spouse, father, mother, child or a relative up to the third level of heirs, the donee shall automatically become a Member of the Company. In other cases, the donee shall only become a Member of the Company upon approval of the Members’ Council.

10.6.        Any of the Members shall have the right to use their Proportion of Capital Contribution to pay debts.

                Where a Member uses his/her Proportion of Capital Contribution to pay a debt, the payee may use such Proportion of Capital Contribution in either of the two following manners:

            (a)        To become a Member of the Company upon approval of the Members’ Council;

(b)        To offer for sale and assign such Proportion of Capital Contribution in accordance with this Charter and the Laws of Vietnam.

ARTICLE 11. INCREASE AND REDUCTION OF CHARTER CAPITAL

11.1          Charter Capital of the Company may be increased by:

(a)        increasing the contributed capital of the Members; or

(b)               raising contributed capital from new Members.

11.2          Where the Members’ contributed capital is increased, the additional contributed capital of each Member shall be divided in proportion to their Proportion of Capital Contribution to the Charter Capital of the Company. A Member may assign its/his/her right to contribute capital to another person in accordance with Article 9 of this Charter. A Member who objects to the resolution of the increase of the Charter Capital may not contribute additional capital. In this case, such amount of additional contributed capital shall be divided amongst other Members in proportion to their respective Proportion of Capital Contribution in the Charter Capital of the Company unless otherwise agreed by the Members.

11.3          Charter Capital of the Company may be decreased by means of:

(a)                returning to the Members a part of their contributed capital pro rata to their Proportion of Capital Contribution in the Charter Capital of the Company, provided that:

(i)                 the Company has been operating continuously for more than two consecutive years from the date of enterprise registration; and

(ii)               the Company is financially capable of settling its debts and other property liabilities after returning part of the contributed capital to the Members,

(b)               the Company redeems Proportion of Capital Contribution from its Members in accordance with Article 8 of this Charter;

(c)                the Members fail to pay the Charter Capital in full and on time in accordance with Article 6 of this Charter.

11.4          Within ten (10) days from the date of completion of the increase or decrease of the Charter Capital, the Company must notify the Licensing Authority in writing in accordance with the laws.

 

CHAPTER III - ORGANISATIONAL STRUCTURE AND PRINCIPLES OF OPERATION

ARTICLE 12. MANAGEMENT STRUCTURE

The management structure of the Company comprises:

(a)                the Members’ Council;

(b)               the Chairperson of the Member’s Council; and

(c)                the General Director/Director.

ARTICLE 13            . MEMBERS’ COUNCIL

13.1.    The Members’ Council shall consist of all members (for individuals) or authorized representatives of members (for organizations)

13.2.    The Members’ Council has the following rights and obligations:

(a)                to make decisions on the annual business plans and development strategies of the Company;

(b)               to make decisions on the increase or reduction of the Charter Capital and on the timing and method of raising additional capital;

(c)                to make decisions on projects for investment and development of the Company;

(d)               to make decisions on solutions of market development, marketing and technology transfer; to approve loan agreements and contracts for sale of assets valued at [insert – maximum 50%] or more of the value of assets recorded in the most recently published financial statements of the Company;

(e)                to elect, remove or discharge the Chairperson of the Members’ Council; to make decisions on the appointment, removal, dismissal, signing and termination of contracts of the General Director/Director, Chief Accountant and other managers stipulated in the Charter of the Company;

(f)                to make decisions on salary, bonus and other benefits for the Chairperson of the Members’ Council, the General Director/Director, Chief Accountant and other managers;

(g)               to approve annual financial statements, plans for use and distribution of profits or plans for dealing with losses of the Company;

(h)               to make decisions on the organisational and managerial structure of the Company;

(i)                 to make decisions on the establishment of subsidiary companies, branches and representative offices;

(j)                 to make amendments of or additions to the Charter of the Company;

(k)               to make decisions on re-organisation of the Company;

(l)                 to make decisions on dissolution or to request bankruptcy of the Company;

(m)             other rights and obligations stipulated in the Laws of Vietnam and this Charter.

ARTICLE 14. CHAIRPERSON OF THE MEMBERS’ COUNCIL

14.1.        The Members’ Council shall elect one of its Members as Chairperson of the Members’ Council (Chairperson). The Chairperson shall concurrently hold the post of General Director/Director and act as the Legal Representative of the Company. The Chairperson shall hold office for a term of [5] years or for such other term as is set by the Members’ Council from time to time and may be reappointed for additional terms. 

14.2.        The Chairperson shall have the following rights and obligations:

(a)        To prepare working programs and plans of the activities of the Members’ Council;

(b)        To prepare program, agenda and documents for meetings of the Members’ Council or for collecting opinions of Members;

(c)        To convene and preside over meetings of the Members’ Council or to organise the collection of opinions of Members;

(d)        To supervise or organise the supervision of implementation of the resolutions and/or decisions of the Members’ Council;

(e)        To sign resolutions of the Members’ Council on its behalf; and

(c)        To have powers and obligations as assigned to him/her by the Members’ Council from time to time.

The Chairperson shall not exercise any powers and rights other than as vested in him by the Laws of Vietnam or specified in this Charter.

14.3.        In case of absence or lack of capacity to perform his/her rights and obligations, the Chairperson shall authorise in writing a Member to exercise his/her rights and obligations to perform his/her duties. If no Member is authorised, one of the Members of the Members’ Council shall convene a meeting with all other Members to elect one person from the Members to temporarily perform the rights and obligations of the Chairperson on the principle of simple majority.

ARTICLE 15. GENERAL DIRECTOR / DIRECTOR 

15.1.        The Member Council shall appoint the General Director/Director. The General Director/Director can, but does not have to, be a Member. If the General Director/Director acts in his/her capacity as General Director/ Director in carrying out his activities or signing documents on behalf of the Company, but is also a Member, he/she will not be deemed to be acting in his capacity as a Member.

15.2.        The General Director/Director shall, unless he/she dies, retires, resigns or is removed from office earlier by the Members’ Council at the request of the Members, hold office for a term of [5] years or for such other term as may be set by the Members’ Council upon request of the Members. The General Director/Director may be re-nominated by the Members and reappointed by the Members’ Council for additional terms, and may be removed from office by the Members’ Council at the request of the Members prior to the expiration of his/her term.

15.3.        The General Director/Director shall have the power to organise, lead and carry out the management of the Company including the day-to-day management and supervision of the Company as determined by the Members’ Council. The General Director/Director shall implement the decisions of the Members’ Council and the provisions of this Charter.  The General Director/Director shall also be entitled to exercise such other rights and powers as are conferred on him by the Members’ Council. Without prejudice to the generality of the foregoing, unless and until such powers are revoked or modified by the Members’ Council, the General Director/Director shall have the powers, including but not limited to:

(a)                to organise the implementation of resolutions of the Members’ Council;

(b)               to decide upon matters related to the daily business activities of the Company;

(c)                to  organise the implementation of the business plan and the investment plan of the Company;

(d)               to promulgate the regulations of the internal management of the Company;

(e)                to appoint, remove, and/or dismiss managerial positions in the Company, except those which are within the authority of the Members’ Council;

(f)                to recommendations to the Members’ Council on the organisational structure of the Company;

(g)               to submit the annual financial statements to the Members’ Council;

(h)               to make recommendations on how to use the profits gained from, or handle losses incurred in, business activities;

(i)                 to recruit employees in compliance with the Laws of Vietnam; and

(j)                 any other rights and duties provided for in the employment contract entered into between the General Director/Director and the Company in accordance with the resolutions of the Members’ Council.

15.4.        The General Director/Director is not entitled to any increase in salary or bonus when the Company is not able to pay all of its due debts.

 

ARTICLE 16. BOARD OF INSPECTION

In case the number of members of the company is from 11 members or more, the Company must have a Board of Inspection. The Head of the Board of Inspection and other members shall have the authority and powers in accordance with the laws.

ARTICLE 17. REMUNERATION, SALARY AND BONUS SCHEMES OF CHAIRPERSON OF THE MEMBERS’ COUNCIL, GENERAL DIRECTOR/DIRECTOR, AND OTHER MANAGERS

The Company shall be entitled to pay remuneration, salary and bonus to Chairperson of the Members’ Council, the General Director/Director and other managers in accordance with their business results and efficiency. Remuneration and salary of Chairperson of the Members’ Council, General Director/Director and other managers shall be included in the business expenses in accordance with the provisions of the law on corporate income tax and other relevant legislation, and must be recorded as a separate item in annual financial statements of the Company.

ARTICLE 18. RESPONSIBILITIES OF CHAIRPERSON OF MEMBERS’ COUNCIL, THE GENERAL DIRECTOR/DIRECTOR, LEGAL REPRESENTATIVE, AND OTHER MANAGERS

The Chairperson of the Members’ Council, General Director/Director, Legal Representative, and any other manager of the Company shall have the following obligations:

(a)                to comply with the Laws of Vietnam and the Charter;

(b)               to act in the course of their duties with integrity, prudence and efficiency in order to maximise the Company’s lawful benefits;

(c)                to further the Company’s interests; not to use the Company’s information, know-how or business opportunities of the Company, not to abuse their position and authority or to misuse the Company’s property for their personal profit or for the profit of another organisation, entity or individual;

(d)               to notify the Company in a timely, adequate and accurate manner of all companies in which they and any of their Related Persons have acquired an interest. Such notification must be made within five (5) working days from the date on which a related interest arises or changes. The Company must collate and update the list of related persons of the Company and their transactions with the Company. Such list must be kept at the head office of the Company; and

(e)                other rights and obligations as stipulated by the laws and this Charter.

ARTICLE 19. CONVENING A MEETING OF THE MEMBERS’ COUNCIL

19.1.        Subject to the Laws of Vietnam and provisions of this Charter, the Members’ Council may regulate their proceedings as they find appropriate for the operation of the Company, however, at least one meeting must be convened per year (Meeting).

Upon the availability and agreement of the Members and as long as they find it appropriate, the first Meeting shall be held within ninety (90) days after issuance of the Enterprise Registration Certificate.

19.2.        The Meeting shall be held at the place where the Company has its head office or at such other place or places as selected and agreed by the Members’ Council from time to time.  The Meeting may be conducted by telephone conference, electronic mail or written consultation, or in any other manner if so agreed by the Members in writing giving due consideration to the best and most efficient manner for the conduct of meetings in the prevailing circumstance.

19.3.        Ad-hoc meeting shall be convened in accordance with the decision of the Chairperson, at the request of the General Director/Director or at the request of any Member(s) owning a minimum of [please insert an appropriate percentage, maximum is 10%] of Capital Contribution to the Charter Capital.

19.4.        The Chairperson shall prepare or organise the preparation of the agenda, the content of the material and convene the Meeting. The Members shall be entitled to put forward written recommendations on the agenda of the Meeting.

The Chairperson shall accept recommendations from the Members with respect to the agenda and supplement them into the agenda of the Meeting if the recommendations have adequate contents as regulated and are sent to the head office of the Company at least one working day before the Meeting takes place. In case of recommendations being submitted right before the opening of the Meeting, they will be accepted if approved by the majority of the Members attending the Meeting.

19.5.        Notice of the Meetings must be given to the Members and shall specify the time and venue and be accompanied by an agenda of and materials to be used in the Meeting.

19.6.        The agenda and documents for a Meeting must be sent to Members of the Company prior to the Meeting. Documents to be used in a Meeting relating to decisions on amendment of or addition to the Charter of the Company, approval of the development direction of the Company, approval of annual financial statements, or reorganization or dissolution of the Company must be sent to Members no later than seven (7) working days prior to the date of the Meeting. The period for sending other documents shall be [insert].

19.7.        If the Chairperson fails to organise the Meeting as requested by the Members as specified in Clause 20.3 of this Article within fifteen (15) days from the date of receipt of the request, such Member(s) may convene the Meeting.

19.8.        The request of convening the Meeting made pursuant to Clause 20.3 and 20.7 of this Article must be in writing and specify (i) name, address, nationality, identification number of a Member being a individual; name, enterprise code number or number of establishment decision and head office address of a Member being an organisation; Capital Contribution Ratio, number and issuance date of the Certificate of Capital Contribution of the requesting Member(s); (ii) reasons for request to convene the Meeting and the issues to be resolved; (iii) proposed agenda of the Meeting; and (iv) full name and signature of each requesting Member or of their authorised representative.

19.9.        Where a request for convening a Meeting fails to include adequate content as stipulated in Clause 20.8 of this Article, the Chairperson must notify the related Members in writing within seven (7) working days from the date of receiving such request.

In other cases, the Chairperson must convene the Meeting within fifteen (15) days from the date of receiving such request.

If the Chairperson fails to convene the Meeting as regulated, he/she must be personally responsible before the Laws of Vietnam for damages caused to the Company and related Members of the Company. In this case, the requesting Members have the right to convene the Meeting.

ARTICLE 20. PROCEEDING MEETINGS OF THE MEMBER’S COUNCIL

20.1.        The quorum necessary to conduct the Meeting shall be at the representation of at least 65% of Capital Contribution to the Charter Capital of the Members attending the Meeting. 

20.2.        Where a Meeting does not take place because the required quorum is not satisfied, such Meeting may be convened for a second time within fifteen (15) days from the date on which the first Meeting was intended to be opened. A Meeting which is convened for a second time shall be conducted where the attending Members represent at least 50% of the Charter Capital.

20.3.        Where a Meeting which has been convened for a second time does not take place because the required quorum in respect of the secondly convened Meeting is not satisfied, the Meeting may be convened for the third time within ten (10) working days from the date on which the secondly convened Meeting was intended to be opened.  Such Meeting convened for the third time shall be conducted irrespective of the number of attending Members and of the amount of Charter Capital represented thereby.

20.4.        A Member shall be deemed to be present at a Meeting if he/she participates by telephone or other electronic means and other Members participating in the Meeting are able to hear, or contemporaneously communicate with, each other.

A Member may authorise in writing another Member to attend the Meeting and to speak and cast votes on behalf of the authorising Member.

20.5.        Where a Meeting which satisfies the conditions stipulated in this Article fails to complete its agenda within the proposed time-limit, the Meeting session may be extended. The extended period must not exceed thirty (30) days from the date of opening of such Meeting.

ARTICLE 21. RESOLUTIONS MADE BY THE MEMBERS’ COUNCIL

21.1.        The Members’ Council shall approve its decisions by ways of voting or collecting of written opinion .

The following matters shall be passed by way of voting at a meeting of the Member Council:

-        decisions on amendments and supplementations to the company charter

-        decisions on approval of the development direction of the company

-        decisions on approval of annual financial statements

-        decisions on reorganization or dissolution of the company

 

21.2.        The decision of the Members’ Council shall be passed at a meeting of the Members’ Council :

-        if it is agreed by Members holding at least 65% of the Capital Contribution of attending members:

-        if it is agreed by Members holding at least 75% of the Capital Contribution of attending members  in  respect of decision on the sales of asset with its value to be equivalent or over 50% of the total value of the company’s assets, the amendments and supplementations to the company charter, reorganization or dissolution of the company

21.3.        To the appropriate extent permitted by the Laws of Vietnam from time to time and in accordance with this Charter, without an actual Meeting being held, a resolution of the Members’ Council shall be passed by way of collection of written opinions if it is agreed by Members holding at least 65% of the Charter Capital. The procedures for passing resolutions of the Members’ Council by way of collection of written opinions shall be in accordance with the Law on Enterprises.

ARTICLE 22. MINUTES OF MEMBERS’ COUNCIL MEETINGS

Minutes shall be kept of all Meetings and of the business transacted thereat. Copies of the minutes shall be distributed to each Member of the Members’ Council. The person writing the Minutes and the chairman of the Meeting are jointly responsible for the accuracy and truthfulness of the Minutes of the Meetings.

ARTICLE 23. CONTRACTS AND OTHER TRANSACTIONS TO BE APPROVED BY THE MEMBERS’ COUNCIL    

23.1.        Contracts and transactions between the Company and the following persons must be approved by the Members’ Council:  

(a)                Members, authorised representatives of any Members, the General Director/Director and the Legal Representative of the Company;

(b)               Related Persons of any of the persons stipulated in (a) above;

(c)                managers of a parent company and the persons who have the authority to appoint the managers of the parent company; and

(d)               Related Persons of the persons stipulated in (c) above.

The signatory of a contract or transaction must send to the Members a notice of entities involved in such contract or transaction; and must enclose the draft contract or a notice of the main contents of the transaction intended to be conducted. The Members’ Council must make a decision on approval of such contract or transaction within [fifteen (15) days] from the date of receipt of the notice; in this case, the contract or transaction shall be approved if it is agreed by Members holding at least 75% of the Capital Contribution of members attending the meeting . The interested Members in such contract or transaction shall not be included for voting.

23.2.        A contract or transaction shall be void and be dealt with as such in accordance with law where it is not executed in accordance with the provisions in clause 1 of this Article, causing loss and damage to the Company. The signatory of the contract or transaction, the interested Member and the Related Persons of such Member must compensate for any loss arising and return to the Company any benefits gained from the performance of the contract or transaction which was signed contrary to the provisions of clauses 1 of this article or which causes loss and damage to the Company.    

 

ARTICLE 24. RIGHTS AND OBLIGATIONS OF MEMBERS

The Members shall have the following rights and obligations:

24.1.        Rights of a Member:

(a)                to attend meetings of the Members’ Council, to discuss, make recommendations and vote on the matters within the authority of the Members’ Council;

(b)               to have the number of votes in proportion to its Proportion of Capital Contribution, except otherwise stated in this Charter;

(c)                to be distributed with profits in proportion to its Proportion of Capital Contribution after the Company has paid taxes in full and discharged all other financial obligations in accordance with the Laws of Vietnam; 

(d)               to be distributed with the remainder of the value of assets of the Company in proportion to its Proportion of Capital Contribution in the Company upon the dissolution or bankruptcy of the Company;

(e)                to be given priority in making additional Capital Contributions to the Company upon any increase of Charter Capital of the Company;

(f)                to dispose of its Proportion of Capital Contribution by way of assignment of all or part of its Proportion of Capital Contribution, or by gift or other methods in accordance with laws and this Charter;

(g)               to initiate legal action regarding civil liability by itself or in the name of the Company against the Chairperson of the Members Council, the Director or General Director, the Legal Representative or other managers in accordance with laws;

(h)               Any Member or a group of Members holding 10% or more of the Charter Capital [or other smaller percentage], also has the following rights:

(i)                 to request that a meeting of the Members’ Council be convened to deal with issues within its authority;

(ii)               to inspect, sight or consult transaction monitoring records, books of account and annual financial statements;

(iii)             to inspect, sight, consult or copy the Members’ Register, minutes of meetings and resolutions of the Members’ Council and other files of the Company;

(iv)             to request a court to cancel a resolution of the Members’ Council within ninety (90) days from the date of closing of a meeting of the Members’ Council if the sequence, procedures and conditions for holding such meeting or the contents of such meeting are inconsistent with or do not comply with the laws and this Charter,

(i)                 other rights stipulated under the Laws of Vietnam.

24.2.        Obligations of a Member:

(a)                to contribute in full and on time the amount of capital as undertaken and to be liable for the debts and other property obligations of the Company to the extent of the amount of capital contributed to the Company;

(b)               not to withdraw its contributed capital from the Company in any form, except otherwise clearly stated in this Charter;

(c)                to comply with the Charter of the Company;

(d)               to observe resolutions and decisions of the Members’ Council;

(e)                to bear personal responsibility when performing the following acts in the name of the Company:

(i)                 to breach the laws;

(ii)               to conduct business or other transactions not for the interest of the Company and thereby causing damage to other persons;

(iii)             to pay premature debts where the Company is likely to be in financial danger;

(f)                to perform other obligations under the Laws of Vietnam.

 

ARTICLE 25. PRINCIPLES OF DISPUTE RESOLUTION

Any dispute between the Members shall first be resolved through negotiation and conciliation. If the Members fail to reach an agreement, the dispute shall be brought to a competent court in accordance with the laws of Vietnam.

 

CHAPTER IV - ACCOUNTING AND FINANCE

 

ARTICLE 26. ACCOUNTING

26.1.        Accounting system, books, records and procedures of the Company shall be prepared in compliance with the Laws of Vietnam.

26.2.        At the end of each Financial Year, an annual financial statement shall be drawn up by the General Director/Director and shall be audited by an independent auditing company in conformity with the provisions on auditing of the Laws of Vietnam. The Company will provide the financial statement for the Members’ Council’s review at least ten (10) days prior to the Meeting of the Members’ Council.

Within ninety (90) days from the closing date of the Financial Year, the annual financial statement of the Company will be sent to the competent taxation authority, Licensing Authority and statistics bureau.

ARTICLE 27. FINANCIAL YEAR

27.1.        The Financial Year of the Company commences on 01 January and terminates on 31 December of each year.

27.2.        The first Financial Year of the Company will start on the date of issuance of the Enterprise Registration Certificate by the competent Licensing Authority and end on 31 December of the same calendar year.

ARTICLE 28. DISTRIBUTION OF PROFITS, ESTABLISHMENT OF FUNDS AND PRINCIPLES OF BEARING LOSS

28.1.        Distribution of profits

Subject to each item of this provision, profits of the Company are distributed:

(i)         as permitted by the Laws of Vietnam;

(ii)        in proportion to each Member’s proportion of respective Capital Contribution.

Profits of the Company shall not be distributed and shall be retained to the extent necessary:

(i)         to ensure that the Company is able to meet any capital adequacy or solvency requirements under the laws of Vietnam, and is able to pay its taxes and debts as and when they fall due;

(ii)        to meet any reserve fund or capital expenditure requirements specified in the business plan or annual budget; and

(iii)       to offset any losses from the previous Financial Year(s) and pay off any shareholder loans.

28.2.        Any remaining profits from the previous Financial Year(s) may be distributed together with those of the current Financial Year. Subject to any resolution of the Members’ Council to the contrary, the Company shall distribute 100% of its net profits after tax to the Members in proportion to the Members’ respective Capital Contribution.

28.3.        All bank charges incurred within Vietnam on the payment of profit to any Member shall be borne by the Company.

28.4.        Losses

The losses arising from the business or otherwise incurred by the Company shall be dealt with in such manner as may be determined by the General Director/Director in compliance with the policies laid down by the Members’ Council and the applicable laws of Vietnam.

 

CHAPTER V – ESTABLISHMENT AND LIQUIDATION

ARTICLE 29. ESTABLISHMENT

29.1.        The Company shall be established upon the approval of this Charter by the Members of the Company and the Company is issued with the Enterprise Registration Certificate by the competent Licensing Authority.

29.2.        All costs in connection with the establishment of the Company are integrated in the expenses of the Company and are counted as reimbursed out of the expenses of the first financial year.

ARTICLE 30. TERMINATION OF OPERATIONS

30.1.        The operation of the Company shall be terminated upon any action or proceeding taken against it for its dissolution, winding-up, or following a lawful declaration of bankruptcy

30.2.        The operation of the Company may be terminated:

(a)                By a decision of the Members’ Council;

(b)               As a result of a decision made by the Competent Licensing Authority to revoke the Enterprise Registration Certificate in the event that the Company has been proved to have seriously violated the Laws of Vietnam and has not rectified such violation(s) after having been given reasonable opportunity to do so.

(c)                The number of members is not enough in accordance with the laws in a period of consecutive six months.

30.3.        The Company can only terminate its operation after settling all of its debts and other financial obligations.

 

ARTICLE 31. REORGANIZATION OF THE COMPANY

The reorganization, division, splitting, consolidation, merger or transformation of the Company shall be upon the decision of the Members’ Council and shall be conducted in accordance with the laws.

 

CHAPTER VI – MISCELLANEOUS

ARTICLE 32. SUPPLEMENT AND/OR AMENDMENT OF THE CHARTER

32.1.        Matters not mentioned in this Charter shall be resolved in accordance with the applicable laws of Vietnam.

32.2.        This Charter may be supplemented and/or amended if it is agreed by members representing at least 75% of the capital contribution of the total capital contribution of members attending the meeting of the Members’ Council and must be notified to the competent Licensing Authority within ten (10) days as from the date of such supplementation and/or amendment. 

32.3.        No amendment or variation of or supplement to this Charter shall be valid unless it is in writing and signed by or on behalf of the Members and duly notified to the competent Licensing Authority.

ARTICLE 33. DISPUTE RESOLUTION

Any dispute arising in relation to the performance or non-performance of any obligation under this Charter should first be referred to negotiation and conciliation. In the event that resolution of the dispute by negotiation and conciliation is not achieved within a period of one (1) month from the date when the dispute was first notified by the aggrieved party, the dispute will be referred to a competent court of Vietnam for a resolution.

ARTICLE 34. LANGUAGE OF THE CHARTER

This Charter is executed by the Members or duly authorised representative of the Members in [insert language of the Charter – if English and Vietnamese, prevailing language would be Vietnamese] originals.

ARTICLE 35. EFFECTIVE DATE

This Charter shall become effective from the date of the issuance of the Enterprise Registration Certificate by the Licensing Authority or any other relevant State Agency.

ARTICLE 36. EXECUTION

This Charter is signed on [insert the date of execution] on [insert number of copies of the Charter] original copies in [English and in Vietnamese]. [insert number of copies retained by Members - one] [(insert number of copies retianed by Members - 1)] copy of each version shall be retained by the each of the Members, [insert number of copies retained at the Company - two] [(insert number of copies retained at the Company - 2)] copies of each version shall be retained by the Company and [insert number of copies submitted to the Authorities - one] [(insert number of copies submitted to the Authorities - 1)] copy of each version shall be submitted to the competent Licensing Authority. 

 

EXECUTED for and on behalf of

THE FOUNDING MEMBERS

by their authorised representatives:

__________________________________   Name: Title:		________________________________ Name: Title: