In Vietnam, how is the resolution of the General Meeting of Shareholders passed?

NguyenThiThuTrang June 27, 2022

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Resolution of the General Meeting of Shareholders in a Joint Stock Company is an extremely important document, recognizing the important issues of the company. The current Law on Enterprises has clear provisions to ensure that the Resolution of the General Meeting of Shareholders is passed in a reasonable manner. Let’s find out this issue with Lawyer X through the following situation: “Hello, Lawyer! I would like to ask how can the Resolution of the General Meeting of Shareholders be passed? What are the conditions for passing a resolution of the general meeting of shareholders? Can this resolution be revoked? Thanks for the reply Lawyer!”

Legal grounds

Enterprise Law 2020

Form of passing a resolution of the General Meeting of Shareholders

– The General Meeting of Shareholders passes resolutions within its competence by voting at the meeting or collecting written opinions.

Unless otherwise provided in the company’s charter, resolutions of the General Meeting of Shareholders on the following issues must be passed by voting at the General Meeting of Shareholders:
Amending and supplementing contents of the company’s charter;
Company development orientation;
Types of shares and total number of shares of each class;
Elect, dismiss and remove members of the Board of Directors and Supervisory Board;
Decide to invest or sell assets valued at 35% or more of the total value of assets recorded in the company’s most recent financial statement, unless the company’s charter stipulates the ratio or value other;
Approving annual financial statements;
Reorganization, dissolution of the company.

Conditions for the resolution of the General Meeting of Shareholders to be approved

The resolution on the following contents is approved if it is approved by the number of shareholders representing 65% of the total votes or more of all shareholders attending and voting at the meeting, except for the case specified in Clause 1 of this Article. Clauses 3, 4 and 6, Article 148 of the Law on Enterprises; The specific ratio is prescribed by the company’s charter:

Types of shares and total number of shares of each class;
Changing industries, professions and business fields;
Change the company’s organizational management structure;
Projects to invest in or sell assets with a value of 35% or more of the total value of assets recorded in the company’s most recent financial statement, unless the company’s charter stipulates a different ratio or value. ;
Reorganization, dissolution of the company;
Other issues prescribed by the company’s charter.

– Resolutions are approved when approved by the number of shareholders holding more than 50% of the total votes of all shareholders attending and voting at the meeting, except for the case specified in Clauses 1, 3, 4 and 6 Article 148 of the Law on Enterprises; The specific ratio shall be prescribed by the company’s charter.

Unless otherwise provided for in the company’s charter, the voting to elect members of the Board of Directors and the Supervisory Board must be done by cumulative voting method, whereby each shareholder has the corresponding total number of votes. with the total number of shares owned multiplied by the number of elected members of the Board of Directors or the Supervisory Board and shareholders have the right to pool all or part of their total votes for one or several candidates. The elected members of the Board of Directors or Supervisors are determined by the number of votes counted from the highest to the lowest, starting from the candidate with the highest number of votes until the number of members specified in the Charter is sufficient. company. In case there are 02 or more candidates achieving the same number of votes for the last member of the Board of Directors or the Supervisory Board, a re-election will be conducted among the candidates with the same number of votes or selected according to the criteria specified in the election regulations or the company’s charter.

In case of passing a resolution in the form of collecting written opinions, the resolution of the General Meeting of Shareholders shall be passed if the number of shareholders holding more than 50% of the total votes of all shareholders with voting rights. decided to agree; The specific ratio shall be prescribed by the company’s charter.

– Resolutions of the General Meeting of Shareholders must be notified to shareholders entitled to attend the General Meeting of Shareholders within 15 days from the date of adoption; In case the company has a website, the submission of a resolution can be replaced by posting it on the company’s website.

– A resolution of the General Meeting of Shareholders on the content that adversely changes the rights and obligations of the shareholder owning preferred shares may only be passed if the number of preferred shareholders of the same type attending the meeting owns at least 75% of the total number of shares. number of preferred shares of that class or more, or approved by preferred shareholders of the same class who own 75% or more of the total number of preferred shares of that class, in case of passing a resolution in the form of collecting opinions. written.

Authority and procedure to collect written opinions of shareholders to pass resolutions of the General Meeting of Shareholders

Unless otherwise provided for in the company’s charter, the authority and procedure to collect written opinions of shareholders to pass a resolution of the General Meeting of Shareholders shall comply with the following provisions:

The Board of Directors has the right to collect opinions of shareholders in writing to pass a resolution of the General Meeting of Shareholders when it deems it necessary for the benefit of the company, except for the case specified in Clause 2, Article 147 of the Law on Enterprises. Karma;

The Board of Directors prepares opinion polls, draft resolutions of the General Meeting of Shareholders, documents explaining the draft resolution and sends them to all voting shareholders at least 10 days before the deadline. must return the opinion form, if the company’s charter does not provide for a longer time limit. The compilation of the list of shareholders sending opinion forms shall comply with the provisions of Clauses 1 and 2, Article 141 of the Law on Enterprises. The request and method of sending the opinion form and accompanying documents shall comply with the provisions of Article 143 of the Law on Enterprises;

The opinion form must include the following main contents:

Name, head office address, enterprise code number;
Purpose of collecting opinions;

Full name, contact address, nationality, number of legal papers of the individual, for shareholders being individuals; name, business identification number or legal document number of the organization, head office address, for shareholders being an organization, or full name, contact address, nationality, number of legal papers of an individual, with representatives of shareholders being organizations; the number of shares of each class and the number of votes of shareholders;
Matters needing opinions for approval;
Voting options include agreeing, disagreeing and abstaining;
Time limit for sending the answered opinion form to the company;
Full name and signature of the Chairman of the Board of Directors;

– Shareholders can send the answered opinion form to the company by mail, fax or email according to the following regulations:

In case of sending a letter, the answered opinion form must be signed by the shareholder being an individual, the authorized representative or the legal representative of the shareholder being an organization. The opinion form sent to the company must be enclosed in a sealed envelope and no one is allowed to open it before counting the votes;
In case of sending fax or email, the opinion form sent to the company must be kept confidential until the time of counting of votes;
The opinion forms sent to the company after the time limit specified in the content of the opinion form or opened in the case of mailing and disclosed in the case of faxing or emailing are invalid. Opinion forms that are not sent back shall be considered as non-voting ballots;

The Board of Directors shall organize the vote counting and make vote-counting minutes under the witness and supervision of the Supervisory Board or of shareholders who do not hold managerial positions in the company. The vote counting minutes must include the following main contents:
Name, head office address, enterprise code number;
Purpose and issues to be consulted to pass the resolution;
Number of shareholders with the total number of votes that participated in the vote, in which the number of valid and invalid votes is distinguished and the method of sending votes, together with an appendix to the list of shareholders participate in voting;
Total number of votes for, against and abstention for each issue;
The issue has been passed and the proportion of votes passed;
Full name and signature of the Chairman of the Board of Directors, the person supervising the counting of votes and the person counting the votes.

The members of the Board of Directors, the vote-counting person and the vote-counting supervisor must be jointly responsible for the truthfulness and accuracy of the vote-counting minutes; jointly responsible for damages arising from decisions passed due to dishonest or inaccurate counting of votes;

– The vote counting minutes and resolutions must be sent to the shareholders within 15 days from the date of completion of the vote counting. In case the company has a website, sending the vote-counting minutes and resolutions can be replaced by posting it on the company’s website;

Answered opinion forms, vote counting minutes, approved resolutions and relevant documents enclosed with the opinion forms shall be kept at the head office of the company;
Resolutions passed in the form of collecting written opinions of shareholders have the same validity as resolutions passed at the General Meeting of Shareholders.

Request to cancel the resolution of the General Meeting of Shareholders

Within 90 days from the date of receipt of the resolution or minutes of the General Meeting of Shareholders or the minutes of vote counting results to collect opinions of the General Meeting of Shareholders, the shareholder or group of shareholders specified in Clause 2, Article 115 The Law on Enterprises has the right to request the Court or Arbitrator to consider and cancel the resolution or part of the resolution of the General Meeting of Shareholders in the following cases:

The order and procedures for convening a meeting and making a decision of the General Meeting of Shareholders seriously violate the provisions of the Enterprise Law and the company’s charter, except for the case specified in Clause 2, Article 152 of the Law on Enterprises;

The content of the resolution violates the law or the company’s charter.

Effect of resolutions of the General Meeting of Shareholders
– A resolution of the General Meeting of Shareholders takes effect from the date of its adoption or from the effective date stated in that resolution.

– A resolution of the General Meeting of Shareholders passed by 100% of the total number of voting shares is legal and effective even if the order and procedures for convening and approving such resolution violate regulations. of the Enterprise Law and the company’s charter.

– In case a shareholder or group of shareholders requests the Court or Arbitrator to annul the resolution of the General Meeting of Shareholders as prescribed in Article 151 of the Law on Enterprises, such resolution will remain effective until the decision is made. The court’s decision to annul such resolution or arbitration shall take effect, except for the application of provisional urgent measures under a decision of a competent authority.

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Frequently asked questions

The convenor of the General Meeting of Shareholders must send the meeting invitation to all shareholders, right?

The convenor of the General Meeting of Shareholders must send a notice of invitation to the meeting to all shareholders in the list of shareholders entitled to attend the meeting at least 21 days before the opening date, if the company’s charter does not provide for a longer time limit.

How long does it take for a shareholder to request the Court to consider annulling the resolution of the General Meeting of Shareholders?

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