Chương VIII Nghị định 155/2020/NĐ-CP: Quản trị công ty áp dụng đối với công ty đại chúng

Chapter VIII

ADMINISTRATION OF PUBLIC COMPANIES

Section 1. GENERAL PROVISIONS

Article 269. Rules for application of regulations of law on administration to public companies that are credit institutions

In case the regulations of this Decree on company administration contradict regulations of law on credit institutions, the latter shall apply.

Article 270. Charter and internal regulations on company administration

1. The company's charter shall be ratified by the General Meeting of Shareholders (GMS) and must not contradict the Law on Enterprises, the Law on Securities, regulations of this Decree and relevant legislative documents.

2. Company administration regulations shall be formulated by the Board of Directors and submitted to the GMS for ratification. Company administration regulations must not contradict regulations of law and the company's charter.

3. The Minister of Finance shall provide the model charter and company administration regulations as reference for public companies to formulate their own charters and administration regulations.

Section 2. SHAREHOLDERS AND GENERAL MEETING OF SHAREHOLDERS

Article 271. Rights and obligations of shareholders

1. Shareholders of public companies have the rights and obligations specified in Clause 1 Article 41 and Article 127 of the Law on Securities, Article 115, Article 116, Article 117, Article 118 and Article 119 of the Law on Enterprises, the company's charter and relevant laws.

2. If a company has preference shares, rights and obligations associated with these preference shares must be specified in the company's charter.

Article 272. Entitlements of the General Meeting of Shareholders (GMS)

1. The GMS has the entitlements specified in the Law on Enterprises.

2. The Board of Directors shall report unimplemented contents of resolutions of the GMS to the GMS during the nearest meeting. Any issue within the jurisdiction of the GMS must be presented to the GMS during the nearest meeting for approval before implementation.

Article 273. General Meeting of Shareholders

1. The Board of Directors, the Board of Controllers and the person who convenes the GMS shall follow the procedures for convening the GMS specified in the Law on Enterprises, the company's charter and administration regulations. A public company shall publish the list of shareholders entitled to participate in the meeting at least 20 days before the deadline for registration. Authorization of participants in the meeting shall comply with Clause 2 Article 144 of the Law on Enterprises.

2. The Board of Directors, the Board of Controllers and the person who convenes the GMS shall prepare the agenda, meeting and time for the shareholders to participate, discuss and vote on each issue in the agenda in accordance with Clause 5 Article 140 of the Law on Enterprises.

3. The public company’s administration regulations shall specify the application of information technology that allows shareholders to participate in and make comments at online meetings, cast electronic votes or otherwise vote electronically according to Article 144 of the Law on Enterprises and the company's charter.

4. An annual GMS of the public company shall be held every year in accordance with the Law on Enterprises. Members of the Board of Directors and the Board of Controllers shall participate in the annual GMS to answer questions of the shareholders who participate in the meeting (if any). Any member of the Board of Directors and the Board of Controllers who cannot participate in the meeting due to a force majeure event shall submit a written report to the Board of Directors and the Board of Controllers. In case the annual financial statement audit report contains qualified opinions, adverse opinions or disclaimer of opinions, the public company shall invite representatives of the accredited audit organization that audited the company’s financial statement to participate in the annual GMS. The invited representatives of the accredited audit organization shall participate in the annual GMS.

5. Comply with other regulations of law and the company's charter.

Section 3. THE BOARD OF DIRECTORS AND MEMBERS THEREOF

Article 274. Nomination and self-nomination of members of the Board of Directors

1. After candidates for members of the Board of Directors have been nominated, the public company shall publish information about these candidates at least 10 days before the opening date of the GMS on the company’s website for the shareholders to study their profiles before voting. Each candidate shall prepare a written declaration that information about him/her is correct and to perform his/her duties in an honest and prudent manner for the best interests of the company if he/she is given the position of member of the Board of Directors. Information about candidates includes:

a) Full name, date of birth;

b) Qualifications;

c) Work experience;

d) Other managerial positions (including positions in the Board of Directors of other companies);

dd) Interests relevant to the company and the company’s related parties;

e) Other information (if any) specified in the company's charter.

The public company shall publish information about the companies in which the candidates are holding the position of members of the Board of Directors and other managerial positions and their interests in these companies (if any).

2. The shareholder or group of shareholders that holds at least 10% of total ordinary shares or a smaller amount specified in the company's charter is entitled to nominate candidates to the Board of Directors in accordance with the Law on Enterprises and the company's charter.

3. In case the number of candidates is smaller than the minimum number specified in Clause 5 Article 115 of the Law on Enterprises, the incumbent Board of Directors shall nominate more candidates or organize the nomination in accordance with the company's charter and administration regulations. This must be announced before the GMS starts to vote for members of the Board of Directors as prescribed by law.

Article 275. Qualifications for members of the Board of Directors

1. Members of the Board of Directors shall satisfy the standards and conditions specified in Clause 1 and Clause 2 Article 155 of the Law on Enterprises and the company's charter.

2. President of the Board of Directors must not concurrently hold the position of Director/General Director of the same public company.

3. Members of the Board of Directors of a public company may concurrently hold the position of member of Board of Directors of up to 05 other companies.

Article 276. Composition of the Board of Directors

1. The Board of Directors of a public company has 03 - 11 members.

2. At least one third (1/3) of the members of the Board of Directors of a public company shall be non-executive members.

3. In case a unlisted public company applies the model specified in Point b Clause 1 Article 137 of the Law on Enterprises, at least one fifth (1/5) of its members of the Board of Directors must be independent members. In case the Board of Directors of this unlisted public company has fewer than 05 members, at least 01 of them must be an independent member.

4. Number of independent members of the Board of Directors of a listed companies:

a) At least 01 independent member if the Board of Directors has 03 – 05 members;

b) At least 02 independent members if the Board of Directors has 06 – 08 members;

c) At least 03 independent members if the Board of Directors has 09 – 11 members.

Article 277. Rights and obligations of members of the Board of Directors

1. Members of the Board of Directors have all the rights specified in the Law on Securities, relevant laws and the company's charter, including the right to be provided with information and documents about the finance and business performance of the company and its units.

2. Members of the Board of Directors have the obligations specified in the company's charter and the following obligations:

a) Perform their duties in an honest and prudent manner for the best interests of the company and its shareholders;

b) Attend all meetings of the Board of Directors and comment on the raised issues;

c) Promptly and fully inform the Board of Directors of the remunerations paid by the subsidiary companies, associate companies and other organizations;

d) Inform the Board of Directors during the nearest meeting of transactions between the company, subsidiary companies and companies over 50% charter capital of which is held by the public company with members of the Board of Directors and their related persons; transactions between the company with companies whose founders or executive officers are members of the Board of Directors over the last 03 years from the transaction date;

dd) Disclose information when trading the company’s shares as prescribed by law.

3. Independent members of the Board of Directors shall prepare reports on performance of the Board of Directors.

Article 278. Responsibilities and obligations of members of the Board of Directors

In addition to the responsibilities and obligations specified in the Law on Enterprises and the company's charter, the Board of Directors also has the following responsibilities and obligations:

1. Assume responsibility to the shareholders for the company’s operation.

2. Ensure equal treatment for all shareholders; respect interests of people with interests relevant to the company.

3. Ensure that the company’s operation is conformable with law, the company's charter and regulations.

4. Formulate operating regulations of the Board of Directors; submit them to the GMS for ratification and post it on the company’s website. The Minister of Finance shall provide the model operating regulations of the Board of Directors of public companies.

5. Supervise and prevent conflict of interest between members of the Board of Directors, the Board of Controllers, the General Director/Director and other executive officers, including improper use of the company’s assets and taking abuse of transactions with related parties.

6. Formulate the company administration regulations and submit them to the GMS for ratification in accordance with Article 270 of this Decree.

7. Designate the person in charge of company administration.

8. Provide training in company administration and necessary skills for members of the Board of Directors, the Director/General Director and other executive officers of the company.

9. Submit reports on performance of the Board of Directors to the GMS in accordance with Article 280 of this Decree.

Article 279. Meetings of the Board of Directors

1. Meetings of the Board of Directors shall be held in accordance with Article 157 of the Law on Enterprises and Point c Clause 3 Article 41 of the Law on Securities.

2. Minutes of meetings of the Board of Directors shall be detailed, contain the full names and signatures of the chair and the minute taker. In case the chair or the minute taker refuses to sign the minutes, regulations of Clause 2 Article 158 of the Law on Enterprises shall apply. The contents approved by the majority of the participating members shall be made into a ratified resolution. Minutes of meetings of the Board of Directors shall be retained in accordance with regulations of law and the company’s charter.

Article 280. Reporting operation of the Board of Directors at annual GMS

The report on operation of the Board of Directors to be presented at the annual GMS as prescribed in Point c Clause 3 Article 139 of the Law on Enterprises and the company's charter shall have the following contents:

1. Remunerations, operating costs and other benefits of the Board of Directors and each of its members as prescribed in Clause 3 Article 163 of the Law on Enterprises and the company's charter.

2. Summaries of the meetings of the Board of Directors and its decisions.

3. Reports on transactions between the company, subsidiary companies and companies over 50% charter capital of which is held by the public company with members of the Board of Directors and their related persons; transactions between the company with companies whose founders or executive officers are members of the Board of Directors over the last 03 years from the transaction date.

4. Activities of independents members of the Board of Directors and their opinions about the operation of the Board of Directors (for listed companies).

5. Operation of the audit committee of the Board of Directors in case the public company applies the model specified in Point b Clause 1 Article 137 of the Law on Enterprises.

6. Operation of other units of the Board of Directors (if any).

7. Performance of the General Director/Director.

8. Performance of other executives.

9. Future plans.

Article 281. Person in charge of company administration

1. The Board of Directors of the public company shall appoint at least 01 person in charge of company administration, who will assist in administration works and may concurrently hold the position of the company’s secretary as prescribed in Clause 5 Article 156 of the Law on Enterprises.

2. The person in charge of company administration must not concurrently work for the accredited audit organization that is auditing the company’s financial statements.

3. The person in charge of company administration has the following rights and obligations:

a) Provide consultancy for the Board of Directors in organizing the General Meeting of Shareholders and performance of relevant tasks between the company and its shareholders;

b) Prepare for meetings of the Board of Directors, the Board of Controllers and the GMS as requested by the Board of Directors or the Board of Controllers;

c) Provide consultancy on meeting procedures;

d) Participate in the meetings;

dd) Provide consultancy on procedures for lawful issuance of resolutions of the Board of Directors

e) Provide financial information, minutes of meetings of the Board of Directors and other information for members of the Board of Directors and the Board of Controllers;

g) Supervise and report to the Board of Directors on the company’s information disclosure;

h) Assist in contact between parties with relevant interests;

i) Protect confidentiality of in accordance with regulations of law and the company's charter;

k) Other rights and obligations prescribed by law and the company's charter.

Section 4. AUDIT COMMITTEE AND MEMBERS THEREOF

Article 282. Composition of the audit committee

1. The Board of Directors of a public company that applies the model specified in Point b Clause 1 Article 137 of the Law on Enterprises shall have an affiliated audit committee.

2. An audit committee shall have at least 02 members. The chairperson of the audit committee shall be an independent member of the Board of Directors. Other members of the audit committee shall be non-executive members of the Board of Directors.

3. Members of the audit committee shall have knowledge about accounting, audit, law and the company’ operation, and must not:

a) Work in the company’s accounting or finance department;

b) Be a member of employee of the accredited audit organization that is auditing the company’s financial statements over the last 03 years.

4. The chairperson of the audit committee shall have a bachelor’s degree or higher in economics, finance, accounting, audit, law or business administration unless higher qualifications are required by the company's charter.

5. The designation of the chairperson and other members of the audit committee is subject to approval by the Board of Directors during its meeting.

Article 283. Rights and obligations of the audit committee

In addition to the rights and obligations in Article 161 of the Law on Enterprises and the company's charter, the audit committee also has the following rights and obligations:

1. Access documents about the company’s operation; discuss with other members of the Board of Directors, the Director/General Director, chief accountant and other managers to collect information serving the operation of the audit committee.

2. Request representatives of the accredited audit organization to participate in meetings of the audit committee to provide explanation for issues relevant to the audited financial statements.

3. Use external legal counseling, accounting and other counseling services where necessary.

4. Formulate policies on detection and management or risks and submit them to Board of Directors; propose solutions for the risks that occur during the company’s operation.

5. Submit a written report to the Board of Directors whenever a member of the Board of Directors, the Director/General Director or another executive officer fails to fulfill their responsibilities prescribed in the Law on Enterprises and the company's charter.

6. Formulate operating regulations of the audit committee and submit them to the Board of Directors for ratification. The Minister of Finance shall provide the model operating regulations of the audit committees of public companies.

7. The audit committee shall have at least 02 meetings per year. Minutes of these meetings must be detailed, bear the signatures of the minute taker and participating members, and be fully retained.

Article 284. Reporting by independent members of the Board of Directors in the audit committee at the annual GMS

1. Independent members of the Board of Directors in the audit committee shall report during the annual GMS

2. Such a report shall have the following contents:

a) Remunerations, operating costs and other benefits of the audit committee and each of its members as prescribed in the Law on Enterprises and the company's charter;

b) Summaries of meetings of the audit committee, its verdicts and proposals;

c) Results of supervision of the company’s financial statements, finance and operation;

d) Evaluation of transactions between the company, subsidiary companies and companies over 50% charter capital of which is held by the public company with members of the Board of Directors, the Director/General Director, other executives of the company and their related persons; transactions between the company with companies whose founders or executives are members of the Board of Directors, the Director/General Director or executive officers over the last 03 years from the transaction date;

dd) Evaluation of the company’s internal control and risk management system;

e) Performance of the Board of Directors, the General Director/Director and other executives of the company;

g) Cooperation between the audit committee with the Board of Directors, the Director/General Director and shareholders.

Section 5. BOARD OF CONTROLLERS AND MEMBERS THEREOF

Article 285. Nomination and self-nomination of members of the Board of Controllers

1. Unless otherwise prescribed by the company's charter, the nomination and self-nomination of members of the Board of Controllers shall comply with Clause 1 and Clause 2 Article 274 of this Decree.

2. In case the number of candidates is smaller than the minimum number, the incumbent Board of Controllers shall nominate more candidates or organize the nomination in accordance with the company's charter and administration regulations.

Article 286. Members of the Board of Controllers

1. The Board of Controllers has 03 - 05 members. These members are not necessarily shareholders of the company.

2. Members of the Board of Controllers shall satisfy the standards and conditions specified in Article 169 of the Law on Enterprises and the company's charter and shall not:

a) Work in the company’s accounting or finance department;

b) Be a member of employee of the accredited audit organization that is auditing the company’s financial statements over the last 03 years.

3. The chief of the Board of Controllers shall have a bachelor’s degree or higher in economics, finance, accounting, audit, law, business administration or another major that is relevant to the enterprise’s operation, unless higher qualifications are required by the company's charter.

Article 287. Rights and obligations of members of the Board of Controllers

1. Members of the Board of Controllers have all the rights specified in the Law on Enterprises, relevant laws and the company's charter, including the right to be provided with information and documents about company’s operation. Members of the Board of Directors, the Director/General Director and other executives of the enterprise shall fully and promptly provide information as requested by members of the Board of Controllers.

2. Members of the Board of Controllers shall comply with regulations of law, the company's charter and professional ethics in performance of their duties.

Article 288. Rights and obligations of the audit committee

In addition to the rights and obligations in Article 170 of the Law on Enterprises and the company's charter, the Board of Controllers also has the following rights and obligations:

1. Submit and request the GMS to approve the list of accredited audit organizations, which will audit the company’s financial statements; choose the accredited audit organization that audits the company’s operation; discharge accredited auditors where necessary.

2. Take responsibility to the shareholders for the supervision tasks performed by the Board of Controllers.

3. Supervise the company’s finance, lawfulness of operation of members of the Board of Directors, the Director/General Director and other executive officers.

4. Cooperate with the Board of Directors, the Director/General Director and shareholders.

5. Send a written notice to the Board of Directors within 48 hours after discovery of violations against the law or the company's charter by a member of the Board of Directors, General Director/Director or another executive of the company, and request the violator to stop committing the violations and take remedial measures.

6. Formulate operating regulations of the Board of Controllers and submit them to the GMS for ratification. The Minister of Finance shall provide the model operating regulations of the Board of Controllers of public companies.

7. Submit reports to the GMS in accordance with Article 290 of this Decree.

Article 289. Meetings of the Board of Controllers

1. The Board of Controllers shall have at least 02 meetings per year. Each meeting must be participated in by at least two thirds (2/3) of its members. Minutes of these meetings must be detailed, bear the signatures of the minute taker and participating members. All minutes of meetings of the Board of Controllers must be retained in order to attribute responsibility of each member.

2. The Board of Controllers is entitled to request members of the Board of Directors, Director/General Director and representatives of the accredited audit organization to participate in its meetings and clarify raised issues.

Article 290. Reporting operation of the Board of Controllers at annual GMS

If the public company applies the model specified in Point a Clause 1 Article 137 of the Law on Enterprises, the report on operation of the Board of Controllers to be presented at the annual GMS as prescribed in Point d and Point dd Clause 3 Article 139 of the Law on Enterprises shall have the following contents:

1. Remunerations, operating costs and other benefits of the Board of Controllers and each of its members as prescribed in Article 172 of the Law on Enterprises and the company's charter.

2. Summaries of meetings of the Board of Controllers, its verdicts and proposals.

3. Results of supervision of the company’s operation and finance.

4. Evaluation of transactions between the company, subsidiary companies and companies over 50% charter capital of which is held by the public company with members of the Board of Directors, the Director/General Director, other executives of the company and their related persons; transactions between the company with companies whose founders or executives are members of the Board of Directors, the Director/General Director or executive officers over the last 03 years from the transaction date;

5. Performance of the Board of Directors, the General Director/Director and other executives of the company.

6. Evaluation of the cooperation between the Board of Controllers, the Board of Directors, the Director/General Director and shareholders.

Section 6. PREVENTION OF CONFLICT OF INTEREST

Article 291. Responsibility for honesty and prevention of conflict of interest of executive officers

1. Members of the Board of Controllers, the Board of Controllers, Director/General Director and other executive officers shall disclose their relevant interests in accordance with the Law on Enterprises and relevant legislative documents.

2. Members of the Board of Directors, the Board of Controllers, the Director/General Director, other executive officers and their related persons may only use the information obtained from their positions to serve the interests of the public company.

3. Members of the Board of Controllers, the Board of Controllers, Director/General Director and other executive officers shall send written notices to the Board of Directors and the Board of Controllers of the transactions between the public company, subsidiary companies, companies over 50% of charter capital of which is held by the public company with them or with their related persons as prescribed by law. The public company shall disclose information about the transactions that are approved by the GMS or the Board of Directors in accordance with regulations of the Law on Securities on information disclosure.

4. Members of the Board of Controllers must not vote on the transactions that bring interests to themselves or their related persons as prescribed by the Law on Enterprises and the company's charter.

5. Members of the Board of Directors, the Board of Controllers, the Director/General Director, other executive officers and their related persons must not use or reveal internal information for carrying out relevant transactions.

Article 292. Transactions with related persons

1. When conducting transactions with related persons, the public company shall enter into written contracts in a fair and voluntary manner.

2. Public companies shall implement necessary measures for preventing their shareholders and related persons to carry out transactions that cause loss of capital, assets or other resources of the company.

Article 293. Transactions shareholders, executive officers and their related persons

1. A public company must not provide loans or guarantee for shareholders that are individuals and their related persons unless the public company is a credit institution.

2. A public company must not provide loans or guarantee for shareholders that are organizations and their related persons, except in the following cases:

a) The public company is a credit institution;

b) The shareholder is a subsidiary company whose shares/stakes are not held by the State and has contributed capital in/purchased shares of the public company before July 01, 2015.

3. A public company must not provide loans or guarantee for related persons of shareholders that are organizations, except in the following cases:

a) The public company is a credit institution;

b) The public company and the organization that is a relate person of the shareholder are companies in the same corporation or group, and the transactions is approved by the GMS or the Board of Directors as prescribed by the company's charter;

c) Other cases prescribed by law.

4. A public company may only carry out the following transactions after they are approved by the GMS:

a) Provision of loans or guarantees for members of the Board of Directors, the Board of Controllers, the Director/General Director, other executive officers that are not shareholders, organizations and individuals that are related to them;

Provision of loans or guarantees for organizations that are related to members of the Board of Directors, the Board of Controllers, the Director/General Director, other executive officers of the public company that are in the same corporation or group as the public company is subject to approval by the GMS or the Board of Directors as prescribed by the company's charter;

b) Any transaction that is worth at least 35% of the total assets written in the latest financial statement or any transaction that causes the total transaction value in 12 months from the date of the first transaction reach at least 35% of the total assets written in the latest financial statement, or a smaller ratio specified in the company's charter, between the public company and one of the following entities:

- Members of the Board of Directors, members of the Board of Controllers, the Director/General Director, other executive officers and their related persons;

- Shareholders, authorized representatives of shareholders that hold over 10% of the company’s ordinary shares and their related persons;

- Enterprises that are related to the entities specified in Clause 2 Article 164 of the Law on Enterprises;

c) Loan or sale of assets that exceed 10% of the total assets in the latest financial statement between the company and any shareholder that is holding at least 51% of voting shares of that shareholder’s related person.

5. The Board of Directors shall consider approving the contracts and transactions specified in Point c Clause 4 of this Article if they are worth less than 35% of the total assets in the latest financial statement, or a smaller ratio or value specified in the company's charter.

Article 294. Protection of lawful rights of persons whose interests are relevant to the public company

1. Public companies shall fulfill their responsibility to the community and the persons whose interests are relevant to public companies in accordance with applicable laws and the company's charter.

2. Public companies shall comply with regulations of law on labor, environment and society.

Section 7. REPORTING AND INFORMATION DISCLOSURE

Article 295. Obligation to disclose information

1. Public companies shall disclose fully and accurately disclose the information that must be disclosed periodically and on an ad hoc basis as prescribed by securities laws to their shareholders and the public. Other information must be fully and accurately disclosed if it may affect the securities price and decision making of shareholders and investors.

2. Information shall be disclosed in accordance with regulations of law and the company's charter in order to make sure it is accessible to shareholders and the public. The language of disclosed information must be clear, easy to understand and unequivocal.

Article 296. Reporting and disclosing information about the company’s organizational structure and operation

A public company shall submit a report to State Securities Commission and the Stock Exchange and disclose information about changes to its organizational structure and operation within 24 hours after the changes are approved by the General Meeting of Shareholders.

Article 297. Reporting and disclosing information about the company’s administration

1. Public companies report on their administration at the annual GMS and disclose information in their annual reports in accordance with regulations of securities laws on information disclosure.

2. Public companies shall submit reports and disclose information about their administration every 06 months in accordance with regulations of securities laws on information disclosure.

Article 298. Disclosing information about incomes of members of the Board of Directors and the Director/General Director

Remunerations of each member of the Board of Directors, salaries of the General Director and other executive officers shall be presented in a separate section of the company’s annual financial statement and reported at the annual GMS.

Article 299. Responsibility of members of the Board of Directors, members of the Board of Controllers and the Director/General Director for reporting and information disclosure

In addition to the responsibilities specified in Article 291 of this Decree, members of the Board of Directors, members of the Board of Controllers and the Director/General Director also has the responsibility to inform the Board of Directors and the Board of Controllers:

1. Transactions between the public company and companies whose founding members or executive officers are members of the Board of Directors, members of the Board of Controllers or the Director/General Director over the last 03 years from the transaction date.

2. Transactions between the public company and companies whose members of Board of Directors, General Director/Director or major shareholders are related persons of the public company’s members of the Board of Directors, members of the Board of Controllers or the Director/General Director.

Article 300. Organization of information disclosure

1. Public companies shall formulate and issue their own regulations on information disclosure according to the Law on Securities and its guiding documents.

2. The legal representative or the person authorized to disclose information of a public company shall:

a) Disclose the company’s information to the public in accordance with regulations of law and the company's charter;

b) Make his/her name and phone number publicly available to shareholders.