Luat Viet

:: Question :: Shares of my Company are listed on the HOSE. The enterprise intended to increase its charter capital under the form of issuing additional shares to offer investors in 2009. Nevertheless, when the enterprise registered the dossier to increase its charter capital with the competent Planning and Investment Department, this competent authority did not accept the vote counting minutes, which collects the shareholders’ written opinion. As a result, the Planning and Investment Department requested the enterprise to supply the copy of the Minutes of the General Meeting of Shareholders of the Company. Please kindly advise how the law regulates this case?

Answer:

In accordance with the Article 104 of the Law on Enterprises 2005, the General Meeting of the Shareholders (the GMS) shall pass resolutions, which falls within its power by way of: (i) voting at meetings; or (ii) collecting written opinions and the resolutions, which are passed by way of collecting written opinions, shall be as valid and effective as the resolutions which are passed in the meeting of the GMS.

Nevertheless, in the event that the Charter of the Company does not regulate otherwise, the following resolutions of the GMS must be passed under the form of voting in meetings of the GMS in accordance with the Clause 2, Article 104 of the Law on Enterprises:

a) Amendment of or addition to the charter of the company;

b) Approval of the development direction of the Company;

c) Decision on classes of shares and the total number of shares of each class which  may be offered for sale;

d) Appointment, discharge or removal of members of the Board of Management and Inspection Committee;

e) Decisions on investments or the sale of assets valued at equal to or more than fifty (50) per cent of the total value of assets recorded in the most recent financial statement of the Company, if the charter of the company does not stipulate another percentage;

Therefore, unless the Charter of your Company provides otherwise, the Resolutions of the GMS relating to the increase in charter capital under the form of issuing additional shares to offer must be passed by way of voting in the meeting of the GMS, instead of collecting written opinions, as provided in item a and c above.

• » Question :: I am a member of the Supervisory Commission (the Commission) of a public company which is unlisted and termed from 2007 to 2010. Until now, my term is still valid. In 2009, I was [not] invited to attend any meeting of the company’s Commission. Recently, I also did not attend the Commission’s meeting to produce the Commission’s Report for submission to the General Shareholder’s Meeting (the Meeting) year 2010 on April 9. I was informed that this Commission’s Report was built by the Commissions’ Director (the another member of the Commission also did not attend). I would like to ask you whether the operation of the Commission like that is legal or not? Is the Report mentioned above legal? What should I do to comply with the rights, duties and obligations of a Commission’s member? (01/06/2010)
• » Question :: I am a president of the Management Board (“the Board”) of a public company. As per regulations, the term of the Board, Supervisory Commission (“the Commission”) is five (5) years. Therefore, the first term of the Board, Commission is due on November 2010. However, in order to facilitate the voting of the Board, the Commission in the second term, the Board would like to submit the General Shareholder’s Meeting (“the Meeting”) with the latest on April 19, 2010 for renewal of the first term of the Board, the Commission until April 2011. So, the question is that is the renewal true or not? If the shareholders are not taken opinions directly at the Meeting, can the Board collect opinions indirectly from shareholders in writing? If the Meeting does not pass the renewal, how can the voting of the Board, the Commission be taken in compliance with laws? (31/05/2010)
• » Question :: Our company registers shares at the Securities Depository Central (SDC), but cannot deposit, of which my 10.000 shares. So, can I transfer directly 2.000 shares to my brother and compliment 2.000 shares to my wife? (03/05/2010)
• » Question :: We are a unlisted public company which issued convertible bond (two years term) nearly two years ago. In the coming time, the company will register to list shares in the Ho Chi Minh City Stock Exchange (HOSE). In order to shorten time, will the company be able to conduct this procedure along with converting bonds to shares? (28/04/2010)
• » Question :: In 2009, the price of listed shares of many companies increased continuously. Therefore, such companies were required to provide explanation for such increase. There are many companies used the same explaining contents for different explanation. Please kindly provide the regulations on content of the explanation on increase of price of shares? (21/03/2010)