THU DUC HOUSING DEVELOPMENT CORPORATION

THU DUC HOUSING DEVELOPMENT CORPORATION,tdh_001,#saigon times news,#saigontimesnews,#the saigon times,#thesaigontimes,#saigon times,#saigontimes,the nine stell

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  • Jan 27,2023 تاريخ النشر
  • الكاتب Sahar Shahatit
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THU DUC HOUSING DEVELOPMENT CORPORATION

CHARTER OF

“DAEWON - THU DUC HOUSING DEVELOPMENT JOINT STOCK COMPANY”

Whereas, THU DUC HOUSING DEVELOPMENT CORPORATION - a company duly incorporated and existing under the Laws of Vietnam (hereinafter referred to as “Party A”); DAEWON CO., LTD. - a company duly incorporated and existing under the Laws of Korea (hereinafter referred to as “Party B”) and Mr. CHUN YOUNG WOO - a Korean national (hereinafter referred to as “Party C”) wish to establish a joint stock company under the Laws of Vietnam for the purposes as described below in Ho Chi Minh City, the Socialist Republic of Vietnam.

 

(f)   Permanent address:         140-40, Songjeong-dong, Heungdeok-gu, Cheongju-si, Chungcheongbuk-do, Korea

 

Establishment of the Company

 

3.1.    Establishment of the Company

 

(a)     The Founding Shareholders hereby agree to establish the Company on terms and conditions set out in this Charter.

(b)     Any subsequent Shareholders are unconditionally and irrevocably bound by the terms of this Charter.

 

3.2.    Name and Office of the Company

 

(a)     The full name of the Company shall be “Công ty Cổ phần Phát triển Nhà Daewon - Thủ Đức” in Vietnamese and “Daewon - Thu Duc Housing Development Joint Stock Company” in English or with such other name as may be agreed by the General Meeting of Shareholders and the State Consents.

 

(b)     The head office of the Company shall be located at No. 1, Hamlet 3 (An Phu New Town), An Phu Ward, District 2, Ho Chi Minh City, SR of Vietnam or at other location subject to the resolution of the Board and the State Consents.

 

(c)     The Company may establish Branches and/or Representative Offices in other provinces/cities of Vietnam and/or in foreign countries subject to the business considerations of the Company as determined by the Board, upon the State Consents.

 

Article 4:   Legal Status

 

4.1.    A Joint Stock Company

 

The Company is incorporated as a joint stock company, having the juridical person status under the Laws of Vietnam with effect from the Effective Date. During the course of its operation, the Company shall observe the Laws of Vietnam, the provisions of this Charter and the Investment Certificate. All activities of the Company and respective interests of the Shareholders shall be governed and protected by the Laws of Vietnam.

 

4.2.    Legal Representative of the Company

 

Except otherwise decided by the General Meeting of Shareholders, the General Director (as stipulated in Article 14.2) shall be the legal representative of the Company

 

4.3.    Limited liability

 

(a)     Shareholders shall not be liable for any debts or obligations of the Company except only up to the amount of their respective capital contribution to the Company.

 

(b)     The Company is not responsible for any liability, loss or expense of any Shareholder, whether existing before or after the commencement of the Company’s existence.

 

Article 5:   Business Activities of the Company and Development of the Project

 

5.1.    Business Activities of the Company:

 

The Company will carry on the business of a property development company with land use right belongs to the owner, land user or lessee (primarily involved in development of the Project as described in Article 5.2 and other future property development projects, if any) under the State Consents (the “Business”). The Company shall carry out all lawful acts and things relating to the Business of the Company, including but not limited to the following:

  1. Planning, designing and constructing construction works according to the Business of the Company;
  2. Planning, purchasing, installing machinery, equipment and other required facilities for the Company;
  3. Employing, training, remunerating, disciplining and dismissing officers, managers, and staff;
  4. Importing the necessary machinery, equipment, transportation means, office facilities and raw materials, etc. for the operations of the Company;
  5. Receiving payments for its services in local and/or foreign currency, in accordance with the Laws of Vietnam;
  6. Granting security for loans over the assets of the Company;
  7. Carrying out other activities related to the effective management of the Company’s activities in accordance with the Laws of Vietnam.

 

5.2.    Development of the Project:

 

The Company will invest and fully construct three apartment buildings together with infrastructure facilities on the land area of 10,725 m2 at An Phu Ward, District 2, Ho Chi Minh City for sale and for rent to purchasers and lessees as permitted by the Laws of Vietnam (the “Project”).

 

Article 6:   Operating Duration of the Company and the Project

 

6.1.    The Company shall remain in existence forever, unless otherwise terminated in accordance with Article 26.2 of this Charter.

 

6.2.    The Founding Shareholders have agreed unanimously to propose to the Licensing Authority that, the Company shall carry out the Project for the duration of forty (40) years commencing from 03 February 2004 (“Duration”). The Duration may be adjusted shorter or extended by resolutions of the General Meeting of Shareholders and approval of the Licensing Authority.

 

Article 7:   Charter Capital

 

7.1.    Charter Capital

 

The Charter Capital of the Company shall be VND 162,028,150,000 (one hundred sixty-two billion, twenty-eight million, one hundred and fifty thousand Vietnamese Dong only) which shall be paid up in accordance with Article 8. Charter Capital shall be adjusted automatically upon the sale of new authorized Shares within the number of authorized Shares as stipulated in Article 8.5.

 

7.2.    Use of the Charter Capital

The Charter Capital shall be used for the purposes of the Company’s business and for any other purpose as may be approved by the General Meeting of Shareholders, or, where applicable, the Board in conformity with the Laws of Vietnam and this Charter.

 

7.3.    Increase/Reduction of the Charter Capital

As decided by a Supermajority Vote at a General Meeting of Shareholders and subject to conditions or the State Consents (if required by the Laws of Vietnam), the Charter Capital of the Company may be increased or reduced in such manner, amount and at such time (including the issuance of additional Shares, either through public offering or private placement and the buy-back of Shares from the Shareholders in proportion to the interest held by them in the Company) and such increase or reduction of the Charter Capital must be subject to any conditions or the State Consents (if required by the Laws of Vietnam).

 

Article 8:   Shares and Share Certificates

 

8.1.    Par value of Share

The par value of each Share shall be VND 10,000 (ten thousand Dong only).

 

8.2.    Number and type of Shares

Unless the Charter Capital of the Company is increased or reduced under Article 7.3, the Company is authorized to have a total of 16,202,815 (sixteen million two hundred and two thousand eight hundred and fifteen) Shares. Unless decided otherwise by the General Meeting of Shareholders in accordance with the Laws of Vietnam, all Shares of the Company shall be ordinary shares, which give Shareholders the same rights, obligations and interests.

 

8.3.    Voting right of Shares

 

Each Share shall entitle the relevant Shareholder to one vote at any meeting of the General Meeting of Shareholders.

 

8.4.    Shares held by Founding Shareholders

 

(a)     Founding Shareholders contribute 16,202,815 (sixteen million two hundred and two thousand eight hundred and fifteen) Shares, equivalent to 162,028,150,000 (one hundred sixty-two billion, twenty-eight million, one hundred and fifty thousand Vietnamese Dong only) of the Charter Capital of the Company as follows:

 

(i)      The first Founding Shareholder (Party A) contributes 6,481,126 (six million four hundred eighty-one thousand one hundred and twenty-six) Shares, equivalent to VND 64,811,260,000 (sixty-four billion eight hundred and eleven million two hundred and sixty thousand Vietnamese Dong), accounting for 40% of the Charter Capital of the Company, by value of land use right of 10,725 m2 at An Phu Ward, District 2, Ho Chi Minh City for 40 years commencing from 03 February 2004; and compensation expenses and the value of infrastructure facilities.

 

(ii)     The second Founding Shareholder (Party B) contributes 8,911,548 (eight million, nine hundred and eleven thousand, five hundred and forty-eight) Shares, equivalent to VND 89,115,480,000 (eighty-nine billion one hundred fifteen million four hundred and eighty thousand Vietnamese Dong), accounting for 55% of the Charter Capital of the Company, in cash;

 

(iii)    The third Founding Shareholder (Party C) contributes 810,141 (eight hundred and ten thousand, one hundred and forty-one) Shares, equivalent to VND 8,101,410,000 (eight billion, one hundred and one million, four hundred and ten thousand Vietnamese Dong), accounting for 5% of the Charter Capital of the Company, in cash;

 

(b)     Within a period of three (03) years from the Effective Date, Shares of Founding Shareholders may be freely assigned to other Founding Shareholders, but may only be assigned to persons not being Founding Shareholders if approved by the General Meeting of Shareholders. In this case, the Founding Shareholder intending to assign Shares may not vote on the assignment of such Shares and the assignee shall automatically become a Founding Shareholder of the Company.

 

(c)     Within ninety (90) days from the Effective Date, the Company must notify the Licensing Authority of the contribution of share capital in accordance with provisions of the Laws of Vietnam.

 

8.5.    Offer of Shares for sale:

 

(a)     The Company shall offer and sell the authorized Shares (if any) within three (03) years from the Effective Date. The Board shall determine the timing and method of and the price at which Shares shall be offered for sale for the number of Shares which may be offered for sale.

 

(b)     In case the Company issues additional ordinary Shares and offers such Shares to all Shareholders in proportion to the respective percentage of Shares the currently hold in the Company, the following provisions must be implemented:

 

(i)      The Company must notify all Shareholders in writing and enclosing a Registration Form for Share Subscription issued by the Company by a method guaranteed to reach their permanent addresses and published the same on newspaper in three consecutive issues within ten (10) working days from the date of notification. Such notice of issuance of additional Shares must contain the following:

-    Full name, permanent address, nationality, number of people’s identity card, passport or other lawful personal identification in respect of a Shareholder being an individual; name, permanent address, nationality, number of decision on establishment or number of business registration in respect of a Shareholder being an organization;

-    The current number of Shares and percentage of Shares of Shareholders in the Company;

-    Total number of Shares intended to be issued and number of Shares which a Shareholder is entitled to subscribe;

-    Offered selling price of Shares;

-    Time-limit for registration to subscribe;

-       Full name and signature of the legal representative of the Company;

 

(ii)     Shareholders have the right to transfer their priority right in subscribing for Shares to other persons;

(ii)     If a Registration Form for Share Subscription is not sent to the Company within the notified time-limit, the relevant Shareholder shall be deemed as having rejected the priority right for subscription. Where Shareholders and transferees of priority rights for subscription do not register to subscribe for all the Shares intended to be issued, the remaining number of Shares intended to be issued shall be managed by the Board. The Board may allocate such Shares to other Shareholders of the Company or to other persons in a reasonable manner with conditions not more favorable than the conditions offered to Shareholders of the Company, except where otherwise approved by the General Meeting of Shareholders or where Shares are sold through a securities transaction center.

 

(c)     The conditions, methods and procedures for offering Shares to the public shall comply with the Laws of Vietnam on securities.

 

(d)     The price at which Shares shall be offered shall not be lower than the market price at the time of offering or the most recently recorded value in the books of Shares, except in the following cases:

(i)      Initial offering of Shares to persons other than Founding Shareholders of the Company;

(ii)     Shares offered to all Shareholders in proportion to the respective numbers of Shares they currently hold in the Company;

(iii)    Shares offered to brokers or underwriters. In this case, the specific amount of discount or rate of discount must be approved by the Supermajority Vote at the General Meeting of Shareholders;

(iv)    At the price decided by the General Meeting of Shareholders with the approval of the Supermajority Vote at the General Meeting of Shareholders.

 

8.6.    Payment of Shares

 

(a)     Shares which are allotted to a Shareholder by the Company must be paid for in full in one installment within time period stipulated by the Laws of Vietnam and/or the General Meeting of Shareholders/the Board, depending on each circumstance.

 

(b)     Shares shall be deemed to have been sold upon full payment and correct and full entry of the particulars on the purchaser in the Register of Shareholders of the Company; from such point of time, the purchaser of Shares shall become a Shareholder of the Company.

 

(c)     Payment for Shares may be made in cash in Vietnamese Dong, freely convertible foreign currencies, gold, land use value, value of intellectual property rights, technology, know-how, other assets as provided for in the Charter and the Laws of Vietnam.

 

(i)      If a payment for Shares is made in a foreign currency, it will be converted into Vietnamese Dong at the buying rate applicable to that foreign currency offered by the Bank for Foreign Trade of Vietnam, Ho Chi Minh City on the date the payment is made.

 

(ii)     If a payment for Shares is made in gold, it will be converted into Vietnamese Dong at the price for buying gold of equivalent quality against Vietnamese Dong offered by the Bank for Foreign Trade of Vietnam, Ho Chi Minh City on the date the payment is made.

 

(iii)    If a payment for Shares is made in kind at the time of the establishment of the Company, the assets used for such payment shall be valued by agreement of all the Founding Shareholders in good faith and upon an appropriate and demonstrable basis. If the Founding Shareholders cannot agree on the value of such assets, a qualified auditing firm may be appointed by the Founding Shareholders to undertake the valuation.

 

(iv)    If a payment for Shares is made in kind at any time after the formation of the Board, the assets used for such payment shall be valued by the Board in good faith. In performing its duties, the Board may appoint a qualified auditing firm to provide a valuation.

 

(d)     To the extent required by the Laws of Vietnam, payment for Shares by assets shall be certified by written minutes setting out:

(i)      name and address of the relevant Shareholder;

(ii)     name and address of the Company;

(iii)    description and value of the assets to be used for payment; and

(iv)    place and date of delivery of the assets.

 

     The Shareholders and the Company shall execute all such documents or deeds and do any acts, including registration, certification, notarization, as may be necessary or desirable to effectively and legally transfer to the Company all such assets to be used for the payments of Shares.

 

(e)     Immediately upon contribution of an asset to the Company as payment for Shares, such asset shall become the property of the Company, and no Shareholder shall retain any interest in such asset or otherwise make any claim, challenge or dispute the Company’s ownership of such asset.

 

8.7.    The Register

 

(a)     The Register shall be established and maintained by the Company as the legal record of ownership of Shares by each of the Shareholders. The Register shall record the following details:

(i)      The name and head office of the Company;

(ii)     The total number of authorized Shares; types of Shares to be offered and number of Shares to be offered for each class of Shares;

(iii)    The total number issued Shares and capital value of Shares contributed;

(iv)    Full name, permanent address, nationality, number of people’s identity card, passport or other lawful personal identification in respect of a Shareholder being an individual; name, permanent address, nationality, number of decision on establishment or number of business registration in respect of a Shareholder being an organization;

(v)     The number of each type of Share of each Shareholders and its registration date;

(vi)    All other particulars as may be decided by the Board from time to time.

 

(b)     The Register shall be kept at the Office of the Company and the General Director shall be responsible for safekeeping and updating the Register and for the correctness of all information contained in it.

 

(c)     No later than 14 days after the receipt by the Company of full payment for Shares to be issued by the Company, the General Director shall record, or ensure that an authorized employee of the Company shall record, the relevant details of the Shareholder in the Register.

 

(d)     Shareholders shall notify the Board in writing of any change in their addresses and as long as such notification has not been received by the Company, all notifications, announcements or other communications will be sent to the last address shown on the Register of the Company.

 

(e)     The Company is not entitled to destroy or dispose of any of the following documents for such period stipulated by the Laws of Vietnam:

 

(i)      any share transfer forms which have been registered, and any other documents used as the basis for changing the Register;

 

(ii)     any cancelled Share Certificates;

 

          and the Company shall have the burden of proving the accuracy of any entry or omission from the Register if it fails to comply with the foregoing provisions of this Article 8.7 (e).

 

8.8.    Share Certificates

 

(a)     After a Shareholder has been recorded on the Register of the Company, the General Director shall issue, or ensure that an authorized employee of the Company shall issue, to the relevant Shareholder a Share Certificate in respect of the Shares held by that Shareholder in accordance with this Article ‎8.8.

 

(b)     Every Shareholder shall, subject to Article 8.8 (d), be entitled to Share Certificates for the Shares held by him. Any Shareholder shall have the right to request the Company to replace any number of Share Certificates representing Shares by a single collective Share Certificate.

 

(c)     The Share Certificate shall be issued in a form determined by the Board and shall include, to the extent required by the Laws of Vietnam, the following particulars:

 

(i)      The name and the office of the Company;

 

(ii)     Serial number and date of issue of the Investment Certificate;

 

(iii)    Class of the Shares, par value of each Share and the number and total par value of Shares covered by the Share Certificate;

 

(iv)    Full name, permanent address, nationality, number of people’s identity card, passport or other lawful personal identification in respect of a Shareholder being an individual; name, permanent address, nationality, number of decision on establishment or number of business registration in respect of a Shareholder being an organization in respect of a named Share Certificate;

 

(v)     Summary of procedures for transfer of Shares;

 

(vi)    Signature of the General Director and seal of the Company; and

 

(vii)   Registration number in the Register and date of issue of the Share Certificate.

 

(d)     Where a Share Certificate is lost, torn, burnt or otherwise destroyed in another form, the Shareholder shall be reissued with a share certificate by the General Director at the written request of such Shareholder. A request of a Shareholder must contain the following undertakings:

(i)      That the Share Certificate has really been lost, torn, burnt or otherwise destroyed; in the case of loss, it is additionally undertaken that all best efforts have been exercised to look for the Share Certificate and if found, such Share Certificate shall be returned to the Company for destruction;

(ii)     That the Shareholder shall be responsible for any disputes arising from the re-issue of a new Share Certificate.

 

          In the case of a share certificate which has a par value of over ten million (10,000,000) Vietnamese Dong, before accepting a request for issue of a new Share Certificate, the General Director of the Company may request that the Shareholder of such Share Certificate post a notice on the fact that the Share Certificate has been lost, torn, burnt or otherwise destroyed and make a request to the Company to issue a new Share Certificate within fifteen (15) days from the date of posting the notice.

 

The new Share Certificate shall effectively repeal and replace the Share Certificate being defaced, damaged, lost, or destroyed or no longer usable, provided that the Shareholder shall be liable for payment of all losses, costs and expenses incurred by the Company. The Shareholder may be required to undertake to pay such amounts, actual or contingent, as a condition to the issuance of a new Share Certificate.

8.9.    Transfer of Shares

(a)     Except when provided otherwise in Article 8.4 (c), Shares may be assigned freely to any Persons subject to the restrictions and formalities set out by the Laws of Vietnam and/or this Charter. The assignment of Shares shall be conducted in writing by normal methods or by hand delivery of Share Certificates; however, the assignor shall remain the owner of the relevant share until relevant particulars of the assignee are registered in the Register of Shareholders as stipulated in Article 8.7 (a) of this Charter.

(b)     In order to register an assignment of Shares on the Register, a Shareholder must submit to the General Director an assignment form, together with the appropriate Share Certificate for the Shares being transferred, assignment agreement signed by the assignor and the assignee or their authorized representatives and any other evidence of assignment that the General Director reasonably asks for. The assignment form for a Share may be in any usual form or in any other form which the Board may approve and shall be executed by or on behalf of the assignor and the assignee.

(c)     The Company must retain any assignment form relating to any assignment of Shares which is registered.

(d)     Upon receipt of a transfer form and relevant Share Certificate, in proper form in accordance with this Article, the General Director shall normally record the relevant details of the assignment on the Register. However, the General Director shall be entitled to refuse to record details of an assignment on the Register if the assignment of Shares is not allowed by the Laws of Vietnam or by the terms of this Charter. If the General Director refuses to register an assignment of a Share, it must notify the person to whom the Shares were being assigned of this refusal within two (02) months;

(e)     Where only a number of Shares in a Share Certificate indicating names are assigned, the old Share Certificate shall be cancelled and the Company shall issue a new Share Certificate recording the number of Shares assigned and the remaining number of Shares.

 

8.10.  Transmission of Shares

 

(a)     In case of the death or bankruptcy of a Shareholder, the executors or administrators of such Shareholder, as stipulated by the Laws of Vietnam, shall be the only person or persons recognized by the Company as having any title to or interest in the Shares, but nothing in this Article shall release the estate of a deceased or bankrupted Shareholder from any liability in respect of any Share held by him.

 

(b)     A person becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder will become a Shareholder upon such evidence being produced as the Board may properly require.

 

(c)     A person becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder shall have the rights to which he would be entitled if he were the Shareholder, except that he shall not, before being registered as the Shareholder, be entitled in respect of it to attend or vote at any General Meeting of Shareholders.

 

Article 9:   Shareholders

 

9.1.    Number of Shareholders

 

To the extent required by the Laws of Vietnam, the Company shall have at least three (03) Shareholders.

 

9.2.    Rights and Obligations of the Shareholders

 

(a)     In addition to other rights and obligations under this Charter and/or the Laws of Vietnam, Shareholders of the Company shall have the following rights and obligations:

(i)      to attend and express opinions at the meetings of General Meeting of Shareholders and to exercise the right to vote directly or through an authorized representative;

(ii)     to receive dividends at the rate as may be determined by the General Meeting of Shareholders;

(iii)    to be given priority in subscribing for new Shares offered for sale in proportion to the number of Shares each Shareholder holds in the Company;

(iv)    to freely assign their Shares to other Persons, except in the cases stipulated in Article 8.4 (b);

(v)     to sight, look up and make an extract of information in the List of Shareholders with voting rights and to request amendment of incorrect information;

(vi)    to sight, look up and make an extract or copy of the Charter of the Company, the Book of Minutes of meetings of the General Meeting of Shareholders and resolutions of the General Meeting of Shareholders;

(vii)   upon dissolution of the Company, to receive a pro rata portion of the assets of the Company remaining after the Company has settled all of its liabilities with all creditors which have higher priority by the Laws of Vietnam;

(viii)  to pay in full for the Shares registered to subscribe within time period stipulated by the Laws of Vietnam and/or the General Meeting of Shareholders/the Board, depending on each circumstance;

(ix)    not to withdraw the capital contributed by ordinary Shares from the Company in any form, except where Shares are redeemed by the Company or other persons;

(x)     to comply with this Charter, other internal regulations of the Company, all resolutions and decisions passed in accordance with the Charter by the General Meeting of Shareholders and the Board;

(xi)    to have such other rights and perform such other obligations as are stipulated in the Laws of Vietnam and this Charter;

 

(b)     Any Shareholder or group of shareholders collectively holding more than 10% of the Company’s Shares for a consecutive period of six (06) months or more, shall, in addition to other rights stipulated herein or conferred by Law, have the right to:

(i)      nominate candidates to the Board and the Inspection Committee in accordance with provisions of Article 13.2 (b) and Article 16.2 (b) of this Charter;

(ii)     sight and make an extract of the Book of Minutes and resolutions of the Board, mid-year and Annual Financial Statements and reports of the Inspection Committee;

(iii)    request the convening of a General Meeting of Shareholders.

 

Article 10: Redemption of Shares

 

10.1.  Redemption of Shares upon demand by Shareholders

(a)     A Shareholder voting against the re-organization of the Company or against a change to the rights and obligations of Shareholders stipulated in this Charter may demand the Company to redeem its entire (but is not part of) Shares. Such demand must be made in writing and specify the name and address of the Shareholder, the number of Shares asking for redemption, the intended selling price, and the reason for demanding redemption by the Company. Such demand must be sent to the Company within ten (10) working days from the date on which the General Meeting of Shareholders passed a resolution on a matter referred to in this Article 10.1 (a).

 

(b)     The Company must redeem Shares upon demand by the Shareholder as stipulated in Article 10.1 (a) at the price offered by the Shareholder within a period of ninety (90) days from the date of receipt of the demand. Where there is disagreement relating to the price offered by the Shareholder, it shall be settled as follows:

(i)      Such Shareholder may sell its entire (but is not part of) Shares to other Person; or

(ii)     The Company shall recommend at least three (03) professional valuation organizations for the Shareholder to select from and such selection shall be the final decision.

 

10.2.  Redemption of Shares pursuant to a resolution of the Company:

 

The Company may redeem no more than thirty percent (30%) of the total number of ordinary Shares sold, and part or all of the dividend preference Shares sold (if any) in accordance with the following provisions:

 

(a)     The Board has the right to decide on redemption of more than 10% of the total number of Shares of each class already sold within each period of twelve (12) months. In other cases, redemption of Shares shall be decided by the General Meeting of Shareholders;

 

(b)     The Board shall decide on the price for redemption of Shares. The price for redemption of ordinary Shares shall not be higher than the market price at the time of redemption, subject to the exception in Article 10.2 (c). In respect of dividend preference Shares (if any), the price for redemption shall not be lower than the market price;

 

(c)     The Company may redeem Shares of each Shareholder in proportion to the number of Shares each holds in the Company. In this case, the resolution to redeem Shares of the Company shall be notified by a method guaranteed to reach all Shareholders within thirty (30) days from the date on which such resolution is passed. The notice must include the name and address of the Office of the Company, total number of Shares and class of Shares to be redeemed, price for redemption or principle for determination of the price for redemption, procedures and time-limit for payment, and procedures and time-limit for Shareholders to offer to sell their Shares to the Company;

 

(d)     Shareholders who agree to have their Shares redeemed must send an offer to sell their Shares by a method guaranteed to reach the Company within thirty (30) days from the date of notice. The offer must include full name, permanent address, number of people’s identity card, passport or other lawful personal identification in respect of a Shareholder being an individual; name, permanent address, nationality, number of decision on establishment or number of business registration in respect of a Shareholder being an organization; number of Shares owned and number of Shares offered; payment methods; signature of the Shareholder or the legal representative of the Shareholder. The Company shall only redeem offered Shares stated in the offer to sell their Shares of Shareholders forwarded to the Company within the above mentioned time-limit.

 

10.3.  Conditions for payment and dealing with redeemed Shares

 

(a)     Notwithstanding the foregoing, the Company may only pay Shareholders for redeemed Shares in accordance with this Article 10 if, after such redeemed Shares are paid for, the Company shall still be able to satisfy in full its debts and other property obligations;

 

(b)     All Shares redeemed in accordance with this Article 10 shall be considered Shares not yet sold amongst the Shares which may be offered for sale;

 

(c)     Share Certificates certifying the ownership of redeemed Shares must be destroyed immediately after the corresponding Shares are paid for in full by the Company;

 

(d)     After the redeemed Shares are fully paid for by the Company, if the total value of assets recorded in the accounting books of the Company is reduced by more than ten (10) percent, the Company must notify all creditors thereof within fifteen (15) days from the date on which the redeemed Shares are fully paid for by the Company.

 

Article 11: Issue of Bonds

 

11.1.  The Company shall be entitled to issue bonds, convertible bonds and other classes of bonds through public offering or private placement in accordance with the Laws of Vietnam. However, the Company may not issue bonds in the following cases except where otherwise stipulated by the Laws of Vietnam on securities:

(a)     The Company has not made payment in full for the principal and interest of issued bonds, and/or the Company has not made or not made payment in full for due debts in three (03) previous consecutive years;

(b)     The Company’s average after tax profit rate of three (03) consecutive years is not higher than the interest rate intended to pay for the bonds to be issued.

 

The issue of bonds to creditors being selected financial institutions is not restricted by the provisions in Article 11.1 (a) and Article 11.1 (b).

 

11.2.  The Board has the right to make decisions on the class of bonds, total value of bonds and timing of issue, but must report to the General Meeting of Shareholders at its nearest meeting.

 

Article 12: General Meeting of Shareholders

 

12.1.  Powers of the General Meeting of Shareholders

(a)     The General Meeting of Shareholders shall be the body with the highest authority in the Company and shall, without reducing or limiting the rights of the Board under this Charter, exercise all the powers of the Company and may, in addition to its powers hereunder, delegate some of those powers to the Board from time to time.

(b)     The General Meeting of Shareholders shall comprise all the Shareholders who are entitled to vote of the Company under this Charter.

(c)     In addition to and without affecting the other rights of the Shareholders and/or the General Meeting of Shareholders provided herein or under the Laws of Vietnam, the General Meeting of Shareholders shall have the right to vote on the following matters, with approval by either Simple Majority Vote or Supermajority Vote, as required by Article ‎12.6 (b) or ‎Article 12.6 (c) as the case may be:

(i)      To pass the development direction of the Company;

(ii)     To make decisions on the classes of Shares and total number of Shares of each class which may be offered for sale;

(iii)    To make decisions on the rate of annual dividend for each class of Shares;

(iv)    To elect, remove or discharge members of the Board and members of the Inspection Committee;

(v)     To make investment decisions or decisions on sale of assets valued at 50% or more per cent of the total value of assets recorded in the most recent financial statement of the Company;

(vi)    To make decisions on amendments of and additions to the Charter Capital of the Company, except for adjusting the Charter Capital as a result of sale of new Shares within the number of shares which may be offered as stated in this Charter;

(vii)   To approve Annual Financial Statements;

(viii)  To make decisions on redemption of more than 10% of the total number of Shares of each class already sold;

(ix)    To consider and deal with breaches by the Board and the Inspection Committee which cause damage to the Company and/or its Shareholder(s);

(x)     To make decisions on re-organization and dissolution of the Company;

(x)     To approve transactions between the Company and Connected Persons having a value of or in excess of 50% of the total assets recorded in the most recent financial statement of the Company;

(xii)   Other rights and duties stipulated in the Laws of Vietnam and this Charter.

 

12.2.  General Meetings

 

(a)     An Annual Meeting shall be held at least once every year in the territory of Vietnam at such time as may be determined by the Board, provided that it will be held within four (04) months after end of a fiscal year. The General Director shall provide to the Chairman of the Board a proposed agenda for each Annual Meeting. An Annual Meeting shall debate and pass the following issues:

(i)      Annual Financial Statements;

(ii)     Report of the Board assessing the actual status of the work of business management in the Company;

(iii)    Report of the Inspection Committee regarding Company management by the Board and the Management Officers;

(iv)    Amount of dividend payable on each class of Share;

 

(b)     The Board must convene an Extraordinary Meeting by a notice in the following cases:

(i)      Upon request by the Board on its initiative by a Simple Majority vote of the Board Members present at a valid meeting;

(ii)     Upon request by a Shareholder or a group of Shareholder as stipulated in Article 9.2 (b);

(iii)    Upon demand by the Inspection Committee;

(iv)    The number of the remaining member of the Board is less than (03) members.

 

(c)     Where the Board fails to convene a meeting of the General Meeting of Shareholders within a time-limit of thirty (30) days from the date of receipt of the request stipulated in Article 12.2 (b) (ii) and Article 12.2 (b) (iii) or from the date on which the number of remaining member of the Board is less than (03) members, then within the following thirty (30) days the Inspection Committee shall replace the Board in convening the General Meeting of Shareholders.

 

(d)     If the Inspection Committee fails to convene the General Meeting of Shareholders as stipulated in Article 12.2 (c), then the Shareholder or the group of Shareholders stipulated in Article 9.2 (b) shall replace the Board and the Inspection Committee in convening the General Meeting of Shareholders.

 

(e)     Notwithstanding the foregoing, the first meeting of the General Meeting of Shareholders shall be convened no later than thirty (30) days after the Effective Date.

 

(f)      The Chairman of the Board shall act as chairman of all meetings of the General Meeting of Shareholders which are convened by the Board; in a case where the Chairman is absent or is temporarily unable to work, the Vice Chairman of the Board shall act as chairman of the meeting of the General Meeting of Shareholders; in a case where the Vice Chairman is also absent or is temporarily unable to work or is unwilling to act as chairman of the meeting of the General Meeting of Shareholders, then the remaining Members of the Board shall elect one of them to act as the chairman of the meeting of the General Meeting of Shareholders. If no member of the Board is willing to act as chairman, or if no member of the Board is present within fifteen minutes after the time appointed for holding the General Meeting of Shareholders, the Shareholders present and entitled to vote shall choose one of themselves to be chairman.

 

(g)     In other cases, the person who signed the document convening the General Meeting of Shareholders shall arrange for the General Meeting of Shareholders to elect a chairman of the meeting and the person with the highest number of votes shall act as chairman of the meeting.

 

12.3.  Notice of General Meetings

(a)     The written notice of any Annual Meeting must be sent by the Chairman of the Board to all Shareholders by a method guaranteed to reach their addresses registered in the Register of Shareholders at least twenty (20) days before the date of opening. The convener of the Extraordinary Meeting shall send a written notice to all Shareholders by a method guaranteed to reach their addresses registered in the Register of Shareholders at least seven (07) days before the date of opening. The notice shall be made in writing and specify the time and the venue of the General Meeting, its proposed agenda and attach all documents that may be necessary for the discussions at the General Meeting.

(b)     The accidental omission to give notice of a General Meeting of Shareholders to any person entitled to receive notice or the non receipt of notice by any such person shall not invalidate the proceedings at that General Meeting of Shareholders. However, the Company’s failure to dispatch notice to an address as set out in the Register of Shareholders shall under no circumstances be regarded as accidental and, in the event of a dispute over the matter, the Company shall be required to prove that the notice was properly dispatched. In addition, if a General Meeting of Shareholders is adjourned for lack of a quorum, the Company shall immediately make good faith efforts to confirm by facsimile, electronic mail, telephone or similar means that each Shareholder has received the notice of the General Meeting of Shareholders that is adjourned and is aware of the date and place of the adjourned meeting.

(c)     A Board Member shall, notwithstanding that he is not a Shareholder, be entitled to attend and speak at any General Meeting of Shareholders, but not entitled to vote.

 

12.4.  Quorum of a General Meeting

                                                                                                

(a)     Subject to provisions of Article 12.4 (b) and Article 12.4 (c), the quorum for a General Meeting of Shareholders shall be the number of Shareholders or the proxy represents at least sixty-five percent (65%) of the voting Shares of the Company.

 

(b)     If the quorum for a General Meeting of Shareholders as stipulated in Article 12.4 (a) is not present within half an hour from the time appointed for the meeting, or if during a General Meeting of Shareholders such a quorum ceases to be present, the General Meeting of Shareholders shall stand adjourned to the time and date as decided by the convener of such meeting of the General Meeting of Shareholders within thirty (30) days of the intended opening of the first meeting and the quorum at such adjourned General Meeting of Shareholders shall be reduced to the presence (whether in person or by proxy) of Shareholders who hold at least fifty-one percent (51%) of the voting Shares of the Company.

 

(c)     If the quorum for such adjourned General Meeting of Shareholders as stipulated in Article 12.4 (b) is not present within half an hour from the time appointed for the meeting, or if during such adjourned General Meeting of Shareholders such a quorum ceases to be present, the adjourned General Meeting of Shareholders shall stand adjourned for the second time to the time and date as decided by the convener of such meeting of the General Meeting of Shareholder within twenty (20) days of the intended opening of the second meeting. In this case, the General Meeting of Shareholders shall be convened if there is at least one (01) Shareholder available irrespective of the percentage of Shares with voting rights of Shareholders attending the meeting.

 

(d)     Shareholders may, subject to the acceptance of the Chairman, attend a General Meeting of Shareholders by telephone or other means of communication provided every such Shareholder is able to hear and be heard by all the other Shareholders attending in person. Attendance by such means shall constitute attendance in person. In this case, notwithstanding Article ‎12.6 (a), voting shall be undertaken in a manner appropriate to the means of communication.

 

12.5.  Amendment to the General Meeting’s agenda

 

(a)     A Shareholder or a group of Shareholders stipulated in Article 9.2 (b) shall have the right to propose changes or additions to the agenda of a General Meeting of Shareholders. The proposed changes or additions shall be in writing and received by the Company at least three (03) days prior to the relevant General Meeting of Shareholders. The proposed changes shall clearly indicate the name of the proposing Shareholder(s), the number of Shares held by each of them, their signatures and the proposed changes or additions to the agenda of the General Meeting of Shareholders.

 

(b)     The Person who convenes a General Meeting shall have the right to reject the proposed changes or additions only in one of the following circumstances:

 

(i)      The proposed changes or additions are received by the Company after the deadline stipulated in Article ‎12.5 (a) or the request for the changes or additions does not contain the information required in Article ‎12.5 (a); or

 

(ii)     The proposed changes or additions are beyond the powers of the General Meeting of Shareholders; or

 

(iii)    The proposed change or addition could have been rejected if the matter constituted the subject matter of a request for an Extraordinary Meeting.

 

12.6.  Resolutions of the General Meeting of Shareholders

(a)     Voting shall be carried by a poll vote of every Shareholder present in person or by proxy at the General Meeting of Shareholders. On a poll every Shareholder shall have one vote for every Share of which he is the holder. The result of the poll shall be deemed to be the resolution of the General Meeting of Shareholder. Where there are joint Shareholders of a Share, any one of them may vote at any General Meeting of Shareholders either personally or by proxy in respect of the Shares as if he were solely entitled to it, but if more than one joint Shareholder is present at a General Meeting of Shareholders either personally or by proxy, the Shareholder whose name stands first in the Register in respect of the Shares shall alone be entitled to vote in respect of them;

(b)     The General Meeting of Shareholder shall decide its business by resolutions. Except for the cases mentioned in Article ‎12.6 (c), a resolution shall be approved if passed by a Simple Majority Vote of at least 65% of         the total voting Shares of all attending Shareholders in the case a General Meeting of Shareholders passes a resolution in a meeting;

(c)     In relation to any of the matters set out in Articles 12.1 (c) (ii), 12.1 (c) (v), 12.1 (c) (vi), and 12.1 (c) (x), a resolution of the General Meeting of Shareholders shall only be approved if passed by a Supermajority Vote at the General Meeting of Shareholders.

(d)     Notwithstanding the foregoing, voting to elect members of the Board and of the Inspection Committee must be implemented by the method of cumulative voting, whereby each Shareholder shall have as his total number of votes the total number of Shares he owns multiplied by the number of members to be elected to the Board or the Inspection Committee.

(e)     Notwithstanding the foregoing, resolutions passed by the General Meeting of Shareholders with the number of Shareholders directly or by proxy participating which represents 100% of the total number voting Shares shall be legal and shall be immediately effective even if the order and procedures for convening the meeting and the contents of the meeting agenda and the procedures for conducting the meeting were not implemented correctly in accordance with this Charter and the Laws of Vietnam.

 

12.7.  Written Resolutions without a General Meeting

 

(a)     Any action by the General Meeting of Shareholders may be taken without a General Meeting if Shareholders holding 75% of the Shares entitled to vote of the Company consent in writing to such action. Such written consent shall have the same force and effect as a vote taken at a General Meeting of Shareholders. Such written consent may consist of one or more documents in like form each signed by one or more Shareholders. The expression “in writing” shall include approval by facsimile followed by the original version which shall be kept by the Company and available for inspection by Shareholders.

 

(b)     The procedures for passing a written resolution without a General Meeting of Shareholders shall be in accordance with the Laws of Vietnam and this Charter.

 

12.8.  Information on Resolutions

 

(a)     Proceedings of any General Meeting of Shareholders shall be recorded in minutes in accordance with the requirements of the Laws of Vietnam. Minutes shall be filed in the Minutes Book which shall be kept by the Company at the Office and open for inspection by Shareholders.

 

(b)     Resolutions of a General Meeting of Shareholders shall be notified to Shareholders, member of the Board, the Management Committee and the Inspection Committee no later than fifteen (15) days from the date of the resolutions.

 

12.9.  Proxies

 

(a)     Each Shareholder shall have the right to appoint one or a number of proxies to act on its behalf in accordance with the Laws of Vietnam. In the event a Shareholder has more than one (1) appointed proxy, such Shareholder must clearly determine the number of Shares and respective number of vote of each appointed proxy. The appointment or revocation of a proxy shall be in writing, and sent to the Board, and it shall be effective upon receipt by the Board. The instrument appointing a proxy does not need to take any particular form as long as its meaning is clear and contains sufficient information as stipulated by the Laws of Vietnam. The proxies so appointed by Shareholders shall not sub-delegate the powers delegated to them to any other Persons nor act outside their scope of authority under the terms of their appointment. A proxy does not have to be a Shareholder.

 

(b)     The Board may, if it thinks fit, send forms of proxy for use at a General Meeting of Shareholders and issue invitations to appoint a proxy in relation to the General Meeting of Shareholders in such form as may be approved by the Board. The appointment of a proxy shall not preclude a Shareholder from attending and voting in person at the meeting of the General Meeting of Shareholders. However, each voting Share at the Company shall only form one (01) vote for its owner or the proxy of the same at the General Meeting of Shareholders.

 

Article 13: The Board

 

13.1.  Powers and Responsibilities of the Board

 

(a)     Except for those powers and duties which are specifically reserved hereunder or by the Laws of Vietnam for the General Meeting of Shareholders, the Board shall have both the authority and the duty to manage all the major affairs of the Company and shall decide all major questions pertaining to the Company, including those matters identified in Article ‎13.1 (b).

 

(b)     Without limitation to the generality of the foregoing, the Board shall have the following powers and responsibilities:

(i)      To make decisions on medium term development strategies, and plans, and on annual business plans of the Company;

(ii)     To recommend the classes of Shares and total number of Shares of each class which may be offered;

(iii)    To make decisions on offering new Shares within the number of Shares of each class which may be offered for sale; to make decisions on raising additional fund in other forms;

(iv)    To make decisions on the price of Shares and bonds of the Company offered for sale;

(v)     To make decisions on redemption of less than 10% of Share of each class during every twelve (12) months;

(vi)    To make decisions on investment plans and investment projects with value less than 50% of the total assets recorded in the most recent financial statement of the Company;

(vii) To make decisions on solutions for market expansion, marketing and technology; to approve contracts for purchase, sale, borrowing, lending and other contracts valued at 50% or more per cent of the total value of assets recorded in the most recent financial statement of the Company, except for those contracts and/or Related Party Transactions which are under the authorization of the General Meeting of Shareholders in accordance with Article 12.1 (c) (xi) and Article 12.1 (c) (v);

(viii)  To appoint, dismiss or remove, and to sign contracts or to terminate contracts with the Management Officers; to make decisions on salaries and other benefits of such Management Officers;

(ix)    To appoint an authorized representative to exercise ownership rights of shares or of capital contributed to other companies, and to make decisions on the level of remuneration and other benefits of such persons;

(x)     To supervise and direct the Management Officers in their work of conducting the daily business of the Company;

(xi)    To make decisions on the organizational structure and internal management rules of the Company, to make decisions on the establishment of subsidiary companies, the establishment of branches and representative offices and the capital contribution to or purchase of shares of other enterprises;

(xii)   To approve the agenda and contents of documents for the General Meeting of Shareholders; to convene the General Meeting of Shareholders or to obtain written opinions in order for the General Meeting of Shareholders to pass resolutions;

(xiii)  To submit annual final financial reports to the General Meeting of Shareholders;

(xiv)  To recommend the dividend rates to be paid, to make decisions on the time-limit and procedures for payment of dividends or for dealing with losses incurred in the business operation;

(xv)   To recommend re-organization or dissolution of the Company, or to request bankruptcy of the Company;

(xvi)  To approve Related Party Transactions having a value less than 50% of the total assets recorded in the most recent financial statement of the Company;

(xvii) Other rights and duties stipulated in this Charter and the Laws of Vietnam.

 

13.2.  Board Members:

(a)     Unless otherwise determined by the General Meeting of Shareholders, the Company shall have five (05) Board Members, all of whom to be appointed by the General Meeting of Shareholders. A Board Member shall not need to be a Shareholder of the Company.

(b)     Any Shareholder or group of shareholders stipulated in Article 9.2 (b) shall have the right to nominate one (01) person as candidate to the Board. However, provided that, until the Shares of Founding Shareholders in the Charter Capital of the Company maintain at the rate stipulated in Article 8.4, the Vietnamese Founding Shareholder (Party A) shall have two (02) representatives in the Board and Foreign Founding Shareholders (Party B and Party C) shall have three (03) representatives in the Board.

(c)     Each Board Member must certify that he satisfies all the following conditions:

(i)      Have full capacity for civil acts, and not belong to the category of persons prohibited from managing an enterprise pursuant to the Laws of Vietnam;

(ii)     Not concurrently being a member of the board of management or management officer of any other business which competes with the Company, unless otherwise approved by the General Meeting of Shareholders;

(iii)    Possessing necessary professional qualifications or skills to undertake the functions of a Board Member and capable of organizing and operating the Company and its business;

(iv)    Having good health and good morals;

(v)     Having never been convicted of any criminal offences; and

(vi)    Such other conditions as may be imposed on all Board Members by the General Meeting of Shareholders from time to time.

(d)     A Board Member shall be removed by the General Meeting of Shareholders if:

(i)      he ceases to meet the conditions set out in Article 13.2 (c); or

(ii)     he becomes bankrupt; or

(iii)    he is, or may be, suffering from mental disorder; or

(iv)    he resigns his office by notice to the Company; or

(v)     he shall for more than six (06) consecutive months have been absent without permission of the Board Members from Board Meetings held during that period;

(vi)    as decided at any time by the General Meeting of Shareholders.

(e)     The Company shall pay remuneration to members of the Board within the total limit of annual remuneration of the Board as decided by the Annual Meeting. Each Board Member shall be entitled to reimbursement for his reasonable traveling, hotel, and other out-of-pocket expenses properly incurred by them in connection with their attendance at a Board Meeting or General Meetings of Shareholders.

(f)      No Board Member shall have the power to make any representations, give any warranties, undertake any commitments on behalf of the Company or bind the Company to any obligation except as expressly provided herein or by resolution of a properly convened and constituted Board Meeting or written resolution in accordance with Article ‎13.8.

(g)     Each Board Member shall abide by all resolutions of the Board.

(h)     Each Board Member shall at all time act in good faith in the interest of the Company and carry out its duties in good faith on behalf of the Company, and may not take any actions which cause the Company to violate the Law of Vietnam.

(i)      Board Members may demand the Management Officers to provide information and documents on the financial situation and business operations of the Company and of units in the Company.

(j)      Each Board Member shall provide timely and sufficient information to the Inspection Committee when requested under Article 16.3.

 

13.3.  Term of the Board:

(a)     Each Board Member shall be appointed for a term of five (05) years and may serve consecutive terms if reappointed by the General Meeting of Shareholders.

(b)     If a seat on the Board becomes vacant, the next General Meeting of Shareholders shall appoint a successor to serve out his term, in accordance with Article 13.2 (b). However, where the number of members of the Board is reduced by more than one third (1/3) of the number stipulated in Article 13.2 (a), the Board must convene an Extraordinary Meeting within sixty (60) days from the date the number of members is reduced by more than one third (1/3), to elect additional members of the Board.

 

13.4.  Chairman and Vice Chairman of the Board:

(a)     The Board Members may appoint one of them to be the Chairman of the Board and, when it is deemed necessary, one to be Vice Chairman and may at any time remove either from that office subject to Article 13.7. However, provided that, until the Shares of Founding Shareholders in the Charter Capital of the Company maintain at the rate stipulated in Article 8.4, in the first term, the Foreign Founding Shareholders shall nominate the Chairman and the Vietnamese Founding Shareholder shall nominate the Vice Chairman; in the second term, the Vietnamese Founding Shareholder shall nominate the Chairman and the Foreign Founding Shareholders shall nominate the Vice Chairman. Thereafter the Vietnamese Founding Shareholder and the Foreign Founding Shareholders shall continue to alternate the nomination of the Chairman and the Vice Chairman.

(b)     Unless he is unwilling to do so, the Board Member appointed as Chairman shall preside at every Board meeting at which he is present. But if there is no Board Member holding that office, or if the Board Member holding it is unwilling to preside or is not present within fifteen (15) minutes after the time appointed for the Board meeting, the Vice Chairman shall preside, or if he is not present within fifteen (15) minutes after the time appointed for the Board meeting, the Board Members present may appoint one of their number to be Chairman of the meeting.

(c)     The Chairman and Vice Chairman may concurrently serve as a Management Officer.

(d)     The Chairman shall have the rights and obligations as set out in this Charter and the Laws of Vietnam.

 

13.5.  Board Meetings:

(a)     The Board Meetings shall be held as often as business requires, but at least once (01) every quarter and shall be presided over by the Chairman. The Chairman shall convene extraordinary Board Meeting at the request of either (i) the Inspection Committee; (ii) the General Director; or (iii) at least five (05) other Management Officers; or (iv) at least two (02) members of the Board. If the Chairman fails to convene an extraordinary Board Meeting within a time-limit of fifteen (15) days from the date of receipt of the said request, the Chairman shall be liable for damage caused to the Company due to the non-performance; the Person making the request shall have the right to replace the Chairman in convening an extraordinary meeting of the Board.

(b)     The Chairman of the Board or the convener of the meeting of the Board as stipulated in Article 13.5 (a) must send a notice of invitation to attend the meeting at the latest five (05) working days prior to the date of meeting; provided always that any Board Member may waive notice of a meeting and any such waiver may relate to a period which has already passed. The notice shall specify the agenda, time and venue of the Board Meeting and shall attach all relevant papers. The General Director shall provide to the Chairman a proposed agenda for each regular Board Meeting. The agenda for an extraordinary Board Meeting shall be provided by the Person who requests such Board Meeting.

(c)     The Management Officers or the Chairman shall provide Board Members upon request with all additional information and/or documents concerning the operation of the Company and relevant to a Board Meeting.

(d)     The first Board Meeting shall be convened no later than ten (10) days after the end of the first meeting of the General Meeting of Shareholders.

(e)     Board Meetings shall normally be held at the Office but may be held at such other address as the Chairman may determine from time to time.

(f)      Board Members may attend a Board Meeting by telephone or other 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.

(g)     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 represent him 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 Member. Every instrument of appointment shall be sent or delivered to the Chairman at the 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 Member in his own right.

(h)     All the members of the Inspection Committee and the General Director (which are not members of the Board) shall be received the notice of invitation to attend the meeting together with the attached documents in the same manner as to the members of the Board. The members of the Inspection Committee and the General Director who are not concurrently members of the Board shall have the right to attend all meetings of the Board, and to discuss issues but not to vote.

(i)      Where necessary, the Board Members may have other persons present to translate, advice and assist in consultations at Board Meetings insofar as those persons are bound by the confidentiality requirements of Article 24.1.

 

13.6.  Quorum for a Board Meeting:

 

The quorum for a valid Board Meeting shall be achieved if three quarters (3/4) of the total number of the Board Members in office are present in person or by proxy.

13.7.  Voting at Board Meetings:

(a)     Each Board Member shall be entitled to one vote at Board Meetings. Questions arising at a meeting shall be decided by a majority of votes of Board Members attending the Board Meeting (in person or represented by proxy). In the case of an equality of votes, the Chairman shall have the casting vote.

(b)     Notwithstanding the foregoing, members of the Board not directly attending a meeting shall have the right to vote by sending a written vote. The written vote must be enclosed in a sealed envelope and delivered to the Chairman of the Board at least one (01) hour prior to the opening of the meeting. Written votes shall only be opened in the presence of all the people attending the meeting.

(c)     A Board Member shall not vote on any Related Party Transactions in which he, or any Connected Person, is interested.

 

13.8.  Written Resolutions without a Board Meeting:

 

At the request of any Board Member, any action by the Board may be taken without a meeting if such number of Board Members consent in writing to such action as would have been required to approve such action at a meeting which is duly convened and held in accordance with this Charter. Such written consent shall have the same force and effect as if taken by Board Members physically present. Such written consent may consist of one or more documents in like form each signed by one or more Board Members. The expression in writing shall include approval by facsimile followed by the original version which shall be kept by the Company. Past written resolutions shall be available for inspection by Board Members.

 

13.9.  Minutes of Board Meetings:

 

At any Board Meeting, minutes shall be kept of the proceedings and the decisions taken by the meeting. The minutes shall be made in Vietnamese and English. The minutes shall be signed by all Board Members present at the relevant Board Meeting. A copy of the minutes shall be sent to Board Members. The original of the minutes shall be filed in the Minute Book. The Minute Book shall be available for inspection by Board Members.

 

Article 14: Management

 

14.1.  Management System:

(a)     The Company shall adopt a management system under which the management organization shall be responsible to and under the leadership of the Board. The Company shall have a General Director, Deputy General Director(s), a Chief Accountant, and a number of other executive managers as decided by the Board from time to time, all of whom shall be individuals of appropriate professional qualifications and experience.

(b)     Notwithstanding the foregoing, until the Shares of Founding Shareholders in the Charter Capital of the Company maintain at the rate stipulated in Article 8.4, the Foreign Founding Shareholders shall have the right to nominate the General Director and the Chief Accountant, the Vietnamese Founding Shareholder shall have the right to nominate the first Deputy General Director and the Assistant Accountant.

 

14.2.  General Directors and Deputy General Directors:

(a)     The General Director shall be appointed and dismissed by the Board. The General Director shall be appointed for a term of five (05) years and may, subject to Board decision, serve further terms. The General Director’s remuneration, welfare and other benefits and other employment terms and conditions shall be determined by the Board in accordance with this Charter and the Laws of Vietnam.

(b)     The General Director shall be the legal representative of the Company in relation to all and any matters concerning its operations and management, including without limitation, representing the Company before the court and the State Authorities and executing on behalf of the Company any and all agreements with third parties. The duties of the General Director shall consist of carrying out the resolutions of the General Meeting of Shareholders and decisions of the Board and organizing and directing the day-to-day operation and management of the Company in accordance with modern management practices and structures, all in good faith and for the benefit of the Company.

(c)     Deputy General Directors shall report to, cooperate with and assist the General Director.

(d)     The Board shall determine the respective responsibilities of the General Director, the Deputy General Directors and shall delegate to them such powers and authorities as the Board shall see fit in order to enable them to carry out their duties in conducting the business of the Company.

(e)     The General Director’s rights and responsibilities include the following on behalf of the Company:

(i)      organize the preparation of a sufficiently detailed business plan and budget for submission to the Board, or where applicable, the General Meeting of Shareholders;

(ii)     direct, manage and organize the implementation of business plans approved by and other decisions of the General Meeting of Shareholders or the Board, and report the results to the General Meeting of Shareholders and the Board in the manner stipulated;

(iii)    oversee the activities of the Company and its business generally;

(iv)    represent the Company before State Authorities and other Persons on all issues concerning the Company’s activities within the framework of this Charter and the resolutions and decisions of the General Meeting of Shareholders or the Board;

(v)     sign and implement all contracts, agreements and other documents, except those that require approval of the Board or General Meeting of Shareholders as stipulated in this Charter or in resolutions of the Board or Shareholders;

(vi)    sign and implement employment contracts and reward, discipline, and dismiss Management Officers, other than himself or herself, staff and workers of the Company and determine their respective duties and responsibilities;

(vii)   manage the implementation of all management and operational rules and regulations approved by the Board;

(viii)  supervise all aspects of commercial strategy, finance and foreign exchange, but always within the limits set out by the Board;

(ix)    in accordance with any limits established by resolution of the General Meeting of Shareholders or the Board, pay out and receive cash on behalf of the Company, write and receive cheques on behalf of the Company and generally operate the accounts of the Company and deal with all financial, taxation and foreign exchange issues; and

(x)     exercise such further powers and perform such further duties (i) as are not reserved to the General Meeting of Shareholders or to the Board or (ii) as the General Meeting of Shareholders or the Board may by resolution confer or impose upon him and generally perform his duties in accordance with the directions of the General Meeting of Shareholders or the Board.

(f)      The General Director may resign at any time provided that he gives such notice as is required by his employment contract to the Company.

(g)     The General Director may be removed from office and replaced at any time by the Board, but without affecting any claim to damages for breach of any contract of service between the General Director and the Company.

(h)     The General Director shall be responsible to the Board for the operations of the Company. The General Director shall have the right to make the final decision in respect of the management of the daily operations of the Company.

(i)      The General Director and Deputy General Directors shall provide timely and sufficient information to the Inspection Committee when requested under Article 16.3.

 

14.3.  Chief Accountant:

 

The Chief Accountant, under the leadership of the General Director, shall be responsible for the financial management of the Company. Among his duties, the Chief Accountant shall organize the compilation of financial statements. The Chief Accountant shall report to the General Director and the Board, and in the event of a conflict of instructions between the Board and the General Director, the Board shall prevail. The Chief Accountant shall provide timely and sufficient information to the Inspection Committee when requested under Article 16.3.

 

14.4.  No Concurrent Offices:

 

The General Director and other Management Officers may not, unless agreed to the contrary by the General Meeting of Shareholders and permitted by the Laws of Vietnam, hold posts concurrently as the general director or any other officer or employee of any other economic organizations in Vietnam. No employee of the Company, including the General Director and any other Management Officers of the Company, may be engaged or employed in Vietnam in any business which is deemed by the Board to be likely to be detrimental to the Company's interests.

 

Article 15: Validity of certain Contracts

 

15.1.  Related Party Transactions:

 

A Related Party Transaction will only be effective if the following conditions are satisfied:

(a)     approval of (i) the General Meeting of Shareholders is required for any contracts valued at 50% or more of the total value of asset of recorded in the most recent financial statement of the Company; and (ii) the Board is required for any contract valued at less than 50% of the total value of asset of recorded in the most recent financial statement of the Company.

(b)     all Related Party Transactions must be on an arms-length basis unless specifically approved by the General Meeting of Shareholders;

 

15.2.  Voting by Parties with Beneficial Interests:

 

Any Person who entered into or is related to or otherwise has a beneficial interest in any Person entering into a Related Party Transaction with the Company, shall not have the right to vote on any matter relating to such Related Party Transaction, either at a General Meeting of Shareholders or at a Board meeting.

 

15.3.  Disclosure of Conflicts:

(a)     Members of the Board, the Management Officers, and members of Inspection Committee must disclose to the Board to report to the General Meeting of Shareholders at the Annual Meeting and shall be posted and kept in the Office of the Company their relevant interests with the Company, including: (i) the enterprise in which they own contributed capital or shares; (ii) the enterprise in which their Concerned Persons jointly own or separately own shares or distributed capital of more than 35% of charter capital.

(b)     If any members of the Board and/or Management Officers performing all forms of work on behalf of themselves or on behalf of others within the scope of operation of the Company, they must report the nature and content of that work to the Board and the Inspection Committee and shall only be permitted to perform the same if the majority of the remaining members of the Board agree.

 

15.4.  Failure to Comply:

 

Any Person failing to comply with the provisions of this Article ‎15 shall indemnify the Company for any losses, claims, liabilities, costs and expenses incurred by the Company, and, to the maximum extent allowed by the Laws of Vietnam, the Company shall have the right to any benefit received by such Person from the relevant Related Party Transaction.

Article 16: Inspection Committee

 

16.1.  Powers and Responsibilities of the Inspection Committee:

(a)     The Inspection Committee shall be the body having the authority to supervise all operations and business activities of the Company on behalf of the General Meeting of Shareholders. The Inspection Committee shall act independently from the Board and Management Officers and shall report to the General Meeting of Shareholders on its assigned duties.

(b)     The Inspection Committee shall have such powers and duties as are stipulated in the Laws of Vietnam and this Charter or as may be decided by the General Meeting of Shareholders from time to time. Notwithstanding the foregoing, the Inspection Committee shall have the following powers and duties:

(i)      To supervise the Board and the Management Committee in the management and administration of the Company;

(ii)     To inspect the reasonableness, legality, truthfulness and prudence in management and administration of business activities, in organization of statistic and accounting work and preparation of financial statements;

(iii)    To evaluate reports on business, Semi-Annual or Annual Financial Statements and reports of the Company; on evaluation of the management of the Board;

(iv)    To submit reports on evaluation of the business reports, Semi-Annual or Annual Financial Statements of the Company and reports on evaluation of the management of the Board to the General Meeting of Shareholders at the annual meetings.

(v)     To review books of accounts and other documents of the Company, the management and administration of the activities of the Company at any time deemed necessary or pursuant to a resolution of the General Meeting of Shareholders or as requested by a Shareholder or group of Shareholders stipulated in Article 9.2 (b); however, provided that the inspections of the Inspection Committee may not disrupt the normal activities of the Board and shall not interrupt the administration of the business operations of the Company;

(vi)    To recommend to the Board or the General Meeting of Shareholders the changes and improvements of the organizational structure, management and administration of the business operations of the Company;

(vii)   Upon discovery of any member of the Board, Management Officer who is in breach of the obligations of a manager of the Company stipulated by the Laws of Vietnam, to give immediate written notice to the Board and request the person in breach to cease the breach and take measures to remedy any consequences;

(viii)  To exercise other rights and perform other duties as stipulated by the Laws of Vietnam, this Charter and/or resolutions of the General Meeting of Shareholders.

(c)     The Inspection Committee may use an independent consultant to perform the assigned duties in accordance with the Laws of Vietnam, this Charter and/or resolutions of the General Meeting of Shareholders.

(d)     Notwithstanding the foregoing, the Inspection Committee may consult the Board prior to submission of reports, conclusions and recommendations to the General Meeting of Shareholders.

 

16.2.  Members of the Inspection Committee:

(a)     Except otherwise decided by the General Meeting of Shareholders, the Inspection Committee shall consist of three (03) members who are appointed, and dismissed by the General Meeting of Shareholders in accordance with provisions of this Charter and the Laws of Vietnam. More than half of the members of the Inspection Committee must permanently reside in Vietnam and at least one (01) member from them must be an accountant or auditor. Members of the Inspection Committee are not required to be Shareholders of the Company.

(b)     Any Shareholder or group of Shareholders stipulated in Article 9.2 (b) shall have the right to nominate one (01) person as candidate to the Inspection Committee.

(c)     The members of the Inspection Committee shall serve a four (04) year term of office which shall be prolonged (i) if necessary for the Inspection Committee to finalize all outstanding duties, or (ii) until the appointment of the new members of the Inspection Committee takes effect, whichever comes first.

(d)     The members of the Inspection Committee shall not be Board Members, Management Officers, or any Connected Person of the Board Members, Management Officers or any Person restricted from holding such office by the Laws of Vietnam, and they shall have to meet such criteria as may be set by the Laws of Vietnam or by the General Meeting of Shareholders from time to time.

(e)     The members of the Inspection Committee shall elect one of them to be the head of the Inspection Committee to manage and control all operations of the Inspection Committee.

(f)      The terms and conditions of employment contracts of the members of the Inspection Committee shall be decided by the General Meeting of Shareholders.

(g)     Members of the Inspection Committee shall be paid remuneration according to their work and be entitled to other benefits as decided by the General Meeting of Shareholders. Members of the Inspection Committee shall be reimbursed for expenses for meals, accommodation, travel and for use of independent consultancy services, etc. when performing their assigned duties. However, provided that, the total amount of such remuneration and expenses paid by the Company to members of the Inspection Committee shall not exceed the total annual operating budget of the Inspection Committee approved by the General Meeting of Shareholders, except where otherwise decided by the General Meeting of Shareholders.

 

16.3.  Rights of the Inspection Committee to be provided with information:

(a)     The Board Member and Management Officers must provide in full, accurately and on time all information and documents relating to the management, administration and business operation of the Company upon demand by the Inspection Committee;

(b)     Members of the Inspection Committee shall have the right to access files and documents of the Company retained in the Office, branches and other locations; and have the right to access offices and/or business locations of the Company;

(c)     The invitation notices to a meeting, written opinion form to obtain opinion from members of the Board and enclosed documents, reports of the Management Committee to the Board and other documents issued by the Company must be sent to members of the Inspection Committee at the same time and in the same manner as for members of the Board.

 

Article 17: Duties of Key Individuals

 

In addition to their duties and responsibilities under the Laws of Vietnam and/or this Charter, each of the Board Members, the Management Officers and members of the Inspection Committee shall:

(a)     exercise all assigned powers and duties in good faith, with due diligence and care and in the best interest of the Company;

(b)     not abuse their positions and powers, not misuse the Company’s money and assets for their own or others’ benefit;

(c)     if the Company fails to settle its outstanding debts and liabilities when due, they shall:

(i)      inform all creditors of the financial situation of the Company to the extent necessary or as required by the Laws of Vietnam;

(ii)     not increase any salary or pay any bonus to the Management Officers or any other employees of the Company;

(iii)    make recommendations on measures to overcome financial difficulties of the Company; and

(iv)    perform such other obligations as are stipulated by the Laws of Vietnam and this Charter.

 

Article 18: Personal Liability and Liability for Expenses

 

18.1.  No Personal Liability:

 

None of the Board Members, the members of the Inspection Committee, or the Management Officers shall be held personally liable for their respective actions nor for any actions taken in good faith on behalf of the Company in accordance with any authority given to them in this Charter, any power of attorney or by any decision of the General Meeting of Shareholders or the Board.

18.2.  Liability for Expenses:

 

Each Board Member, member of the Inspection Committee, and Management Officer, acting in good faith, shall be indemnified out of the assets of the Company against any liability incurred by him in defending any proceedings in relation to the affairs of the Company, whether civil or criminal, in which:

(a)     judgment is given in his favor;

(b)     he is acquitted; or

(c)     relief is granted to him by the court from liability for negligence, default, breach of duty or breach of trust.

 

Article 19: The Seal

 

   The Company shall have an official seal. The Board shall provide for the safe custody of the seal, which shall only be used by the General Director in accordance with his powers set out in this Charter or in the resolutions, decisions of the General Meeting of Shareholders or of the Board. Every instrument to which the seal is affixed shall be signed by the General Director or by the Deputy General Director pursuant to a power of attorney given by the General Director to the Deputy General Director, as the case may be, for that purpose.

 

Article 20: Bank Accounts

 

In accordance with the Board’s guidelines and policies, the Company shall open specialized capital deposit account and interest-bearing account(s) in both Vietnamese and foreign currency at bank(s) permitted to operate in Vietnam as decided by the Board in accordance with relevant regulations of the Laws of Vietnam. The Company is allowed to maintain foreign currency accounts in order to meet its foreign exchange obligations.

 

Article 21: Accounting and Financial Reporting

 

21.1.  Accounting System:

(a)     All records on accounting and statistics of the Company will be kept in accordance with the Vietnamese Accounting System and must be controlled and supervised by the competent Financial and Statistical Authorities of Vietnam;

(b)     The currency of denomination used in bookkeeping will be in Vietnamese Dong. Conversion of any currency into the currency used for purchases as well as accounting purposes will be executed in accordance with the exchange rate published at the time of actual payment by the commercial bank where the Company opened its account(s);

(c)     All accounting records, vouchers, books and statements in relation to the Company’s activities will be made and kept by the Company in Vietnamese and English languages;

(d)     The depreciation rates of the fixed assets of the Company will be in conformity with the Regulation on the depreciation of fixed assets issued by the Ministry of Finance of Vietnam from time to time.

 

21.2.  Fiscal Year:

(a)     The fiscal year of the Company will begin from January 1st of each solar calendar year and end on December 31st of the same year;

(b)     At the end of each fiscal year, the Company will prepare Annual Financial Statements in both Vietnamese and English for the fiscal year. Such Annual Financial Statements will be examined and verified by the Auditor as stated in Article 21.3 and will be submitted to the Board and the General Meeting of Shareholders at the Annual Meeting.

 

21.3.  Auditing:

 

An independent auditing firm licensed or otherwise authorized to carry out auditing in Vietnam will be engaged by the Company as its auditor (“Auditor”), to examine and verify the financial receipts, expenditures and accounts, including the Annual Financial Statements. At determination of the Board, the Company will engage a local office or an affiliate of an auditing firm of international reputation registered in Vietnam as the Auditor. Any and all costs related to the performance of such independent audit by the Auditor as above mentioned will be for the account of the Company.

 

21.4.  Foreign Exchange:

(a)     Vietnamese currency (Vietnam Dong) will be used to make all purchases inside Vietnam and to pay wages to the Company’s Vietnamese staffs;

(b)     Foreign currency (US Dollar or other freely convertible currency) will be used to make all purchases outside Vietnam and to pay wages to the Company’s expatriate personnel;

(c)     Foreign currency available to the Company will be used for the following purposes in accordance with the Laws of Vietnam:

(i)     Payment for offshore services, technical assistance fees and for imported machinery, equipment, materials and other expenses of the Company required to be paid in foreign currency;

(ii)    Payments of principal and interest in respect of borrowing of foreign currency by the Company (if any);

(iii)   Payment of expatriate personnel’s salaries and of foreign currency expenses related to oversea business trips of personnel of the Company;

(iv)   Payment of foreign currency expenses related to attendance of the Board Members at the Board Meetings;

(v)    Payment of the dividend distributed to Foreign Shareholders in accordance with Article 22; and

(vi)   Other payments which the Board decides to be made in foreign currency, subject to the Laws of Vietnam.

 

21.5.  Insurance:

 

All assets of the Company will be insured at an insurance company permitted to operate in Vietnam as determined by the Board. The assets of the Company will not be nationalized, seized or transferred to any other form of ownership by administrative measures.

 

21.6.  Financial obligations:

(a)     The Company will fulfill all financial obligations to the Government of Vietnam in accordance with relevant regulations of the Laws of Vietnam and the Investment Certificate;

(b)     After payment of the corporate income tax and other financial obligations, the Company will be entitled to deduct from the remaining profits to establish the reserve fund, welfare fund, operation expanding fund and other funds. The nature, scope, source and principle of using each fund will be decided by the Board on the basis of accrued profits, in conformity with the Laws of Vietnam;

(c)     The Company is entitled to carry forward losses from previous years to the subsequent year(s) and to cover such losses carried forward by the profit of the subsequent year(s). However, the duration for such forwards will not exceed five (5) years;

 

Article 22: Dividends

 

22.1.  Declaration and Payment of Dividends:

(a)     The Company, through the vote of the General Meeting of Shareholders may declare dividends, provided that (i) no dividend shall exceed the amount recommended by the Board, (ii) no dividend shall exceed the Company’s profits as shown on its audited Annual Financial Accounts, (iii) the Company has fulfilled all financial obligations from prior years to the State, and (iv) the Company will be solvent after declaration and payment of the dividend;

(b)     Pursuant to decisions of the General Meeting of Shareholders to declare dividends, the Board shall determine the methods for payment of dividends;

(c)     Dividends may be paid in cash at the Office, or by cheque, by bank transfer to such bank accounts as the Shareholder directs, or by Shares subject to the approval of the General Meeting of Shareholders or the Laws of Vietnam. The costs and expenses incurred for sending cheques or money transfers shall be borne by Shareholders and shall be withheld by the Company from their dividends. The payment of taxes imposed on the dividends in accordance of the Laws of Vietnam (if any) shall be for the account of the Shareholders;

(d)     In case of each single Shareholder, (i) the receipt signed by him, if dividends are paid in cash, or (ii) a transfer advice issued by the transferring bank designated by the Company which specifies the financial institution and account number designated by him, if dividends are paid by bank transfer, or (iii) such other evidence as to the sending of the cheque to his latest address as shown in the Register or a copy of the cheque signed by him, if dividends are paid by cheque, or (iv) other documents or records of the Company evidencing the payment of Shares, shall be conclusive evidence as to the satisfaction and full discharge of the Company’s payment obligations in respect of dividends payable to such Shareholder;

(e)     In case of joint Shareholders of a Share or a number of Shares, (i) the receipt signed by any one of such joint Shareholders, if dividends are paid in cash, or (ii) a transfer advice issued by the transferring bank designated by the Company which specifies the financial institution and account number designated by one of the Shareholder, if dividends are paid by bank transfer, or (iii) such other evidence as to the sending of the cheque to the latest address of anyone of the joint Shareholders as shown in the Register or a copy of the cheque signed by any of them, if dividends are paid by cheque, shall be conclusive evidence as to the satisfaction and full discharge of the Company’s payment obligations in respect of dividends payable to all those joint Shareholders.

(f)      Dividends payable to Shareholders shall be made in Vietnamese Dong. If requested and to the extent permitted by the Laws of Vietnam, the Company shall at the expense of the Shareholders convert the dividends into US Dollars or other foreign currencies before payment to the Shareholders.

 

22.2.  No Interest:

 

No unpaid dividends shall bear any interest against the Company.

 

22.3.  Unclaimed Dividends:

 

All unclaimed dividends may be invested or otherwise used for the benefit of the Company until claimed. Dividends unclaimed for six years after they became due for payment shall, unless the Board otherwise decides, be forfeited and revert to the Company.

 

Article 23: Repatriation of dividends and income

(a)     The Foreign Shareholders will be permitted to transfer abroad in foreign currency as follows:

(i)     Their share of dividends earned from business operations of the Company;

(ii)    Payment received from provision of service, intellectual property and transfer of technology, if any;

(iii)   Principal of any foreign loan made by the Foreign Shareholders to the Company together with interest thereon (if any), in accordance with the Laws of Vietnam;

(iv)   The invested capital and re-invested capital after clearance of all debts at the time of dissolution of the Company; and

(v)    Other sums of money and assets legally owned by the Foreign Shareholders.

          All of the transfers mentioned in this Article 23 (a) will be made only after payments in full of all applicable taxes in accordance with the Laws of Vietnam.

(b)     All expatriates who are working in the Company shall be permitted to transfer abroad, in foreign currency, their wages and other lawful incomes after deduction for income tax and other taxes have been made.

 

Article 24: Confidentiality

 

24.1.  Disclosure of Confidential Information:

 

Without the prior written consent of the Board, no Board Member, Management Officer, member of the Inspection Committee, person acting subject to Article 13.5 (i), Shareholder or any other related Person shall disclose any Confidential Information of the Company, other than:

(a)     to the subsidiaries of the Company (if any); or

(b)     to the Shareholders to the extent provided in this Charter or as otherwise decided by the General Meeting of Shareholders; or

(c)     to the Company’s managers and employees or to its Auditors or professional advisers so far as they need to know the same for proper performance of their duties directly or indirectly in relation to the business of the Company but in each such case only upon terms which require the recipient of such information to keep such information confidential and not to disclose the same to any other Persons; or

(d)     as required to be disclosed to any competent State Authorities which are entitled by the Laws of Vietnam to require disclosure of such information or as required to be furnished in any arbitration or legal proceedings but in each such case only to the extent so required; or

(e)     to the extent that such information comes into the public domain otherwise than by a breach of the provisions of this Article or would normally come into the public domain in the normal course of business, such as for sales and marketing purposes; or

(f)      to the Shareholders and/or Board Members of any Shareholder, as well as to a Shareholder's professional advisers and service providers, to the extent that such parties have undertaken in writing to comply with the obligations of this Article.

 

24.2.  Definition of Confidential Information:

 

For the purpose of this Article, Confidential Information means all and any information, materials, paper, files, electronic files, written files, data, e-mails and other documents of any forms not available to the public, that are obtained, received, developed or otherwise possessed by the Company, the Board, Board Members, the Inspection Committee and/or its members, the Management Officers, employees, agents, or contractors during the ordinary course of business of the Company, and such other information, paper, files, data and other documents of any forms received from any third parties that are subject to a duty of confidentiality on the part of the Company, including the following:

(a)     the Charter, the Investment Certificate, the Register and the Minute Book, and any State Consent necessary for the business of the Company, including land use right certificate, construction permit, certificates of intellectual property rights (if any), or certificates of goods quality registration (if any);

(b)     documents and papers certifying the title over Company’s assets;

(c)     the trade secrets or confidential knowledge, technology, know-how, techniques, designs, methods, and other information relating to the material transactions of the Company as may be decided by the Board from time to time;

(d)     reports of the Inspection Committee, inspection organizations (if any) or the auditors;

(e)     books of accounts, Annual Financial Accounts, and other accounting documents;

(f)      information on Shareholder(s), any Shareholders’ agreements or cross shareholding relationship or cross guarantee to which Shareholder(s) are parties; and any transactions between the Company and Shareholders;

(g)     information on Board Members, Management Officers, and members of the Inspection Committee including their qualifications, experience and levels of remuneration;

(h)     the Company’s development and business plans and strategy; and

(i)      information on reasonably foreseeable material risks that may affect the operation of the Company; interest rate or currency risks on any debentures or loans of the Company; risks related to derivatives and off-balance sheet transactions; and risks related to environmental liabilities. For the purpose of this paragraph, risks of which the Company has no knowledge or which is unreasonably foreseeable shall not be treated as reasonably foreseeable material risks.

 

24.3.  Disclosure to Potential Buyers:

 

As long as Shares have not been listed on a Stock Exchange Centre, a Shareholder who wishes to sell some or all of his Shares shall be entitled to provide Confidential Information to potential buyers, provided that (i) the potential buyer has first signed a binding Confidentiality Agreement which prohibits any further disclosure and any use of the Confidential Information by the recipient; (ii) a copy of such Confidentiality Agreement, together with a legal opinion on the enforceability of such Agreement by the Company, has first been received by the Board; and (iii) the potential buyer which is to receive the Confidential Information is not a competitor or reasonably perceived as a potential competitor.

 

Article 25: Labor

 

25.1.  Recruitment of personnel:

(a)     The Management Committee will formulate a plan for matters concerning the recruitment, employment, dismissal, wages, labor insurance, welfare benefits, reward and discipline of the workers and staff members of the Company (including whether to extend any existing labor contract) in accordance with relevant labor Laws of Vietnam. The labor plan will be submitted to the Board for consideration and approval;

(b)     Except the Management Officers appointed by the Board, all employees of the Company are recruited and employed in conformity with relevant labor Laws of Vietnam. The Company gives Vietnamese citizens priority in recruitment, however, provided that they have to pass the Company’s recruitment examinations;

(c)     Where high management and technical qualifications are required to which the Vietnamese employees are unavailable, the Company may recruit the foreign employees, provided that the Company will prepare a training program under which the Vietnamese employees will be trained for replacement;

(d)     The remuneration, benefits and other treatments of the Company’s employees will be in accordance with relevant labor Laws of Vietnam. The Company will provide remuneration, benefits and other treatment that match the jobs, proprietary knowledge, experience and contributions of such personnel to the Company;

(e)     The rights and the responsibilities of the Company’s employees will be guaranteed in the labor contracts in accordance with the relevant labor Laws of Vietnam;

(f)      In accordance with the Laws of Vietnam and the Company’s regulations, the salary payable to the Vietnamese employees will be made in Vietnamese Dong and the salary payable to the foreign employees will be made in United States Dollars.

 

25.2.  Other Labor Matters:

 

All matters relating to employees of the Company, including labor contracts, collective labor agreement, working time and holidays, salary, social insurance, recruitment, training, labor inspection, labor dispute settlement and such other related matters shall be decided by the General Director in accordance with the Laws of Vietnam.

 

25.3.  Labor Union:

 

Employees of the Company are entitled to establish a labor union and participate in other socio-politic organizations in accordance with the Laws of Vietnam. Such labor union and organizations in the Company shall operate in accordance with the Laws of Vietnam.

 

Article 26: Restructuring and Dissolution

 

26.1.  Deciding on Restructuring or Dissolution:

 

The General Meeting of Shareholders shall have the right to decide on the restructuring (including consolidation, merger, de-merger, division or other forms of restructure possible under the Laws of Vietnam) or dissolution of the Company. Any restructuring or dissolution shall be carried out in the manner decided by the General Meeting of Shareholders in accordance with the Laws of Vietnam.

 

26.2.  Process of Dissolution:

(a)     The Company shall be dissolved in the following cases:

(i)      by a resolution of a General Meeting of Shareholders;

(ii)     the Company does not have the minimum number of Shareholders as stipulated in the Laws of Vietnam for a period of six (06) consecutive months;

(iii)    the Investment Certificate is revoked;

(iv)    the Company is announced bankrupt by a Court decision under the Laws of Vietnam; or

(v)     other cases as stipulated by the Laws of Vietnam.

(b)     In the case where the Company is to be dissolved, its assets and liabilities shall be liquidated in accordance with the Laws of Vietnam. The proceeds from the liquidation shall be distributed in the manner required by the Laws of Vietnam at such time, or in the absence of the Laws of Vietnam, as decided by the General Meeting of Shareholders.

 

Article 27: Notices

(a)     Any notice to be given pursuant to this Charter shall be given in writing either by pre-paid registered airmail or courier service or cable or facsimile (with the original copy sent by pre-paid registered mail) to such addresses as are specified in the Register.

(b)     Any notice dispatched shall be deemed to have been effected eight (08) days after its postmark in the case of an airmail letter and two (02) working days after dispatch in the case of a cable, facsimile or courier service.

(c)     In the case of joint Shareholders, notices shall be given to the Shareholder whose name stands first in the Register and notice given to him shall be sufficient notice to all the joint Shareholders.

(d)     The Company shall make reasonable efforts to ensure the accuracy of the addresses recorded in the Register, and shall amend a Shareholder’s address upon written notification from that Shareholder.

(e)     The Company shall not deliberately use any means of delivery of notices which is reasonably considered to be unreliable or likely to incur a significant delay.

Article 28: Dispute Resolution

 

28.1.  Informal Dispute Resolution:

(a)     A Dispute (i) between Shareholders or groups of Shareholders, or (ii) between Shareholder(s) and the Board, or (iii) between Shareholder(s) and Management Officer(s), or (iv) between Shareholder(s) and the Inspection Committee, shall be first referred to mutual consultation and negotiations for a period of 30 days.

(b)     If a Dispute is not settled pursuant to Article ‎28.1‎ (a) within the time allowed therein, any party may give a notice of such Dispute (“Notice of Dispute”) to the Chairman requesting (i) the Board’s resolution in respect of Disputes in paragraphs (i) and (iii) of Article ‎28.1 (a), or (ii) the resolution by the General Meeting of Shareholders in respect of Dispute in paragraphs (ii) and (iv) of Article ‎28.1 (a). The Chairman shall forthwith convene a Board Meeting or, as the case may be, a General Meeting in accordance the formalities set out herein.

 

28.2.  Unresolved Disputes:

 

Unless successfully settled in accordance with Article ‎28.1, any Dispute shall be settled by the competent court of the locality where the Office is located in accordance with the Laws of Vietnam.

 

28.3.  Continuation:

 

During but without impacting upon the dispute resolution process, this Charter shall continue in effect.

 

Article 29: Miscellaneous

 

29.1.  Illegal, Invalid or Unenforceable Provisions:

 

If any one or more of the provisions of this Charter shall be declared or adjudged by a competent State Authority to be illegal, invalid or unenforceable under the Laws of Vietnam, that provision shall be deemed for all purposes to be severed from all the other provisions of the Charter, which provisions shall continue in force unaffected.

 

29.2.  Cumulative Nature of Rights:

 

Save as expressly provided to the contrary, the rights and remedies provided under this Charter are cumulative and not exclusive of any rights and remedies provided by the Laws of Vietnam.

 

29.3.  Implementation of the Charter:

All other terms relating to the operation of Company which are not provided for in this Charter, will be executed by the Company in accordance with applicable provisions of the Laws of Vietnam as well as with appropriate provisions described in the Investment Certificate issued by the Licensing Authority.

Article 30: Effective Date

This Charter shall become effective from the date of issue of the Investment Certificate.

 

IN WITNESS WHEREOF this Charter is executed on the 7th day of July 2007 by all Founding Shareholders of the Company or their duly authorized representatives.

 

1st Founding Shareholder

2nd Founding Shareholder

3rd Founding Shareholder

 

 

 

 

______________________

 

 

 

 

______________________

 

 

 

 

______________________

LE CHI HIEU

General Director

Thu Duc Housing Development Corporation

CHEUN, EUNG SIK

Executive Director

Daewon Co., Ltd.

CHUN, YOUNG WOO

 

 

Appendix

Details of the Legal Representative of the Company

 

Except otherwise decided by the Board, the legal representative of the Company as provided for in Article 4.2 of the Charter is as follows:

 

Full name:                                                       CHUN YOUNG WOO

Gender:                                                                       Male

Date of birth:                                      20 November 1930

Nationality:                                         Korean

Passport number:                                 CB0552073

Issued date:                                         26 September 2006

Issued by:                                                        Ministry of Foreign Affairs and Trade

Permanent address:       140-40, Songjeong-dong, Heungdeok-gu, Cheongju-si, Chungcheongbuk-do, Korea.

Title:                              General Director

 

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