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.

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