dtac risk management objective is to earn competitive returns from its various business activities at acceptable risk levels and without compromising dtac Way. Risk Management supports the business in achieving its objectives by actively identifying and managing potential threats and opportunities to avoid issues arising or a situation where benefits can no longer be realised.
Key risks that may affect the operation of the Company and its subsidiaries are as follows:
1.1. Risk from the termination of the Concession Agreement before its term
The Company’s core business is the operation and provision of cellular system radio telecommunications services under the Concession Agreement with CAT Telecom Public Company Limited (CAT), which has a term of 27 years and will expire on 15 September 2018. In addition, dtac TriNet (a subsidiary in which the Company holds 99.99% of its shares) has obtained a licence for international mobile telecommunications in the frequency band 2.1 GHz and a licence for Type III telecommunications from the NBTC on 7 December 2012, which enables dtac TriNet to continue to provide the telecommunications services after the expiration of the Concession Agreement in 2018.
However, the Company is currently in a number of disputes with CAT and it cannot be predicted whether CAT will exercise its rights to terminate the Concession Agreement before its term or not. Therefore, if CAT exercises its right under the Concession Agreement to terminate the Concession Agreement before its term and the Company is not granted an injunction to prevent such action from CAT, such action may result in a material effect on the result of business operations and business opportunity of the Company.
1.2. Risks from changes in laws, regulations and regulator or government policies
a. Uncertainties on regulation and enforcement of related laws and regulations in the telecommunications industry
The telecommunications business is governed by two main acts, namely the Frequency Act and the Telecommunications Act.
The NBTC is empowered to issue regulations to regulate the telecommunications business, such as fixing service fees and tariff structure and issuing rules and measures for consumer protection, etc. Such regulations might reduce the Company’s and its subsidiaries’ ability to make profits and/or might increase the cost of operation of the Company and its group companies (as the case may be). On the contrary, despite the fact that the NBTC has issued various notifications to enable the infrastructure sharing or interconnection and network access between the telecommunications operators, the enforcement of such notifications is unclear in practice, or delayed, or denied or may be challenged. If such kind of obstructions happened, the ability of dtac TriNet to roll out the 2.1 GHz network may be affected.
b. Legal implications concerning the amendments to the Concession Agreement and uncertainties on the issuance of the 2.1 GHz licence
Amendments to the Concession Agreement
Under the Act on Private Sector Participation in State Undertaking B.E. 2535 (1992) (the “Private Participation Act”), a governmental agency wishing to engage a private entity to join or undertake a government project with a capital investment of THB 1,000 million or more must comply with the process set out in the Private Participation Act which includes explicit process on contract amendment between the relevant governmental agency and the private entity participating or engaging in the government project.
After the Private Participation Act became effective, the Company entered into three amendment agreements with CAT which amended, among others, the term of the agreement and the rates of the revenue share payable by the Company to CAT.
Subsequently, the Council of State gave its opinion (No. 292/2550) that the three amendment agreements to the Concession Agreement were not proposed to the Coordinating Committee under Section 22 of the Private Participation Act for consideration and were not proposed to the Cabinet for approval. Accordingly, it was considered that the three amendment agreements to the Concession Agreement had not been made in accordance with the process set out under the Private Participation Act. Nevertheless, the Council of State has further opined that the three amendment agreements to the Concession Agreement are still enforceable, provided that the Cabinet is entitled to revoke such amendment agreements taking into consideration the benefits of the state and the public interest.
The above mentioned opinion of the Council of State is merely a legal opinion, which has no binding effect on the Company.
The Coordinating Committee under Section 22 of the Private Participation Act has provided its preliminary opinion to the Minister of Information and Communication Technology that it does not acknowledge the third amendment agreement to the Concession Agreement. On 28 June 2011, the Cabinet resolved to send such matter to the NBTC as supporting information in considering relevant rules and measures.
At present, the Private Participation Act has been revoked and replaced by the Private Investment in State Undertaking Act B.E. 2556 (2013) (the “Private Investment Act”), which has become effective on 4 April 2013. The Private Investment Act specifies that if it appears to the State Enterprise Policy Office that any project is not executed duly in accordance with this Act, the State Enterprise Policy Office must seek factual clarification from the project owner and request that appropriate procedure be proposed to the Committee on Private Investment in State Undertaking Policy. If such Committee deems that the private investment agreement should be terminated or amended, the Committee must submit its proposal to the Cabinet for approval.
As the Private Investment Act has recently become effective, it is not clear to the Company on the interpretation and enforcement of such Act. In case the Cabinet resolves to revoke the amendment agreement to the Concession Agreement, or requires the Company to pay additional consideration, even if the Company has made an objection to the Cabinet resolution pursuant to the applicable legal process, this could have a material adverse effect on the business, financial condition and results of operations of the Company.
Issuance of the 2.1 GHz Licence
The issuance of the 2.1 GHz license by the NBTC was the first batch of licences on telecommunications business issued to private sector since the Frequency Act becomes effective. Therefore, various sectors have objected to the process and mechanism on the issuance of the license of the NBTC. The Ombudsman, in particular, has objected to the process and mechanism on the issuance of the license of the NBTC and filed a complaint against the NBTC to the Central Administrative Court requesting the Court to issue an injunction to halt the process on the issuance of the license of the NBTC. The Central Administrative Court had ruled on 3 December 2012 dismissing the Ombudsman’s complaint. The Ombudsman has appealed the Central Administrative Court’s order dismissing the Ombudsman’s complaint to the Supreme Administrative Court. As a result, this case is not final. The appeal is being considered by the Supreme Administrative Court, creating uncertainties to dtac TriNet’s operation under the 2.1 GHz license.If the decision of the Supreme Administrative Court is opposite from that of the Central Administrative Court, this could have an effect on the business operations of the Company.
c. Uncertainty on the dispute relating to payment of the access charge
TOT Public Company Limited (TOT) and the Company entered into the Access Charge Agreements in 1994 and 2001. The Access Charge Agreements require that the Company pay an access charge to TOT at a flat rate per number in respect of a post-paid customer and a fixed percentage of the value of the prepaid vouchers in respect of a pre-paid customer.
However, after the announcement of the Telecommunications Act, the use and interconnection of networks between operators must be in accordance with the Telecommunications Act and the NTC Notification on Interconnection, which require that the interconnection charge be determined on a fair, cost-oriented and non-discriminating basis.
In this regard, on 17 November 2006, the Company informed TOT and CAT that it would pay the access charge pursuant to the criteria and at the rate prescribed by the applicable laws, instead of the access charge prescribed in the Access Charge Agreements. The Company believes that the access charge under the Access Charge Agreements is not in compliance with the Telecommunications Act and the Interconnection Notification of the NTC.
TOT argued that the Company is obliged to pay the access charge at the rate originally specified in the Access Charge Agreements. On 9 May 2011, TOT submitted a claim against the Company before the Administrative Court requesting CAT and the Company to be jointly liable for the access charge payment in the total amount of approximately THB 113,319 million, including VAT and interests, and requesting CAT and the Company to comply with the Access Charge Agreements. The Company was notified on 10 October 2014 that TOT amended the plaint on 31 July 2014 related to the claim amount including the VAT and interest from approximately THB 113,319 million to THB 245,638 million (calculated until 10 July 2014), other issues of the case remain the same. Currently, the case is being considered by the Administrative Court.
Based on the opinion of the legal counsel of the Company, the Company believes that the Company has no obligations to pay the access charge as requested by TOT. This is because the Access Charge Agreements are not in compliance with the Telecommunications Act, and the NTC Notification on Interconnection, and the Company has already submitted a notice to terminate the Access Charge Agreements.
However, if the court issues a final order or judgment requiring the Company to pay the access charge as requested by TOT, this may cause a material adverse effect on the financial condition and results of operations of the Company.
d. Risk from changes to the accounting guideline which may affect the Company’s accounting method regarding the calculation of the access charge
After the Company notified TOT of the termination of the Access Charge Agreements on 8 November 2007, the Company has changed its accounting method regarding the access charge. The Company has ceased to record the access charge in its financial statements because the Company viewed that its obligations to pay the access charge had already been terminated. The Company has recorded its revenues and expenses using the rates of the interconnection charge set out in the Reference Interconnection Offers (RIO) of the Company and TOT, which have been approved by the NTC.
However, there is currently no guideline relating to the accounting method for recording revenues and expenses accrued in such manner, and there has been no final court judgement on the issue relating to the access charge. If subsequently there is an accounting guideline on this issue, or if the court has rendered a final judgement on the issue relating to the access charge, the Company may have to change its accounting method in relation thereto. The change of the accounting method may have a material effect on the profits and financial condition of the Company. (See further details in “uncertainty on the dispute relating to payment of the access charge” above.)
e. Risk from unclear enforcement of laws governing foreign ownership
The principal laws which impose restrictions on foreign shareholding are as follows:
- The Land Code which prohibits a “foreigner” (as defined in the Land Code) from owning land, unless permission is granted in accordance with the law. Any foreigner who possesses the land without permission is required to sell such land within the specified period, which shall not be less than 180 days and not more than one year;
- The Foreign Business Act which prohibits a “foreigner” (as defined in the Foreign Business Act) from engaging in certain types of business, including the provision of telecommunications services, unless prior permission is obtained from the Director-General of the Department of Business Development, the Ministry of Commerce;
- The Telecommunications Act which prohibits a “foreigner” (as defined in the Foreign Business Act) from engaging in Type II and Type III telecommunications businesses;
- In addition, the Concession Agreement requires that the Company maintain its qualifications pursuant to the requirements under the Foreign Business Act.
The violation of foreign shareholding limit may result in the revocation of the telecommunications license or termination of the Concession Agreement. The Company and/or its subsidiaries may not be able to continue the telecommunications business.
The Company believes that the Company is not a “foreigner” under the definitions of the Foreign Business Act, the Land Code and the Telecommunications Act, and has correctly and completely followed the practices applicable in Thailand.
The Company is of the opinion that the Government has no clear policy on the interpretation and enforcement of the Foreign Business Act in relation to foreign shareholding issue, resulting in the Company having to take such risk in undertaking its business. Although the Foreign Business Act has been in force for more than 10 years, there has been no Supreme Court precedent or clear practices of the Ministry of Commerce regarding a “nominee” arrangement under Section 36 of the Foreign Business Act in order for the Company to evaluate or assess the impact of the enforcement or interpretation of such provisions under the Foreign Business Act that may have over the Company and its subsidiaries.
Due to such unclear interpretation and enforcement of the Foreign Business Act, on 14 June 2011, a telecommunications operator submitted an allegation to the Royal Thai Police to take a criminal action against the Company (including its directors, certain shareholders of the Company and their directors) alleging that the Company operated the telecommunications business in violation of the Foreign Business Act. Furthermore, on 22 September 2011, a minority shareholder of the Company (holding 100 shares in the Company) filed a lawsuit against certain state agencies, including the NBTC, before the Administrative Court, alleging that the Company is a “foreigner” under the Foreign Business Act. Both cases are being considered by the Royal Thai Police and the Administrative Court.
The Company believes that the Company is not a “foreigner” and has correctly and fully complied with the Foreign Business Act. However, if eventually it is decided (by the final Supreme Court judgment) that the Company is not a Thai company under the Foreign Business Act and the Telecommunications Act and such event is not remedied, it may constitute a ground for CAT to terminate the Concession Agreement or the right of the Company to engage in the telecommunications business under the Concession Agreement may be revoked, or the NBTC may revoke dtac TriNet’s Type III telecommunications licence. As a result, the Company and dtac TriNet may not be able to continue the telecommunications business.
f. Risk from unclear enforcement of the law governing foreign dominance
The NBTC has issued the NBTC Notification on Determination of Foreign Dominance Restrictions B.E. 2555 (2012) (the “Foreign Dominance Notification”), which became effective on 24 July 2012. The Foreign Dominance Notification defines “dominance” as the scenario where foreigners have the controlling power or influential power in policy making, management and operation of the telecommunications business of the licensee by way of, among others, holding shares with half or more than half of the total voting rights. In this respect, the Company is of the opinion that the Foreign Dominance Notification cannot be applied with the Company which has been a concessionaire prior to the effectiveness of said Notification and the Company is protected under Section 305(1) of the Constitution of the Kingdom of Thailand B.E. 2550 (2007) and Section 80 of the Telecommunications Act because the Company is not an applicant for a telecommunications license from the NBTC. The legal advisors share the same legal opinion as the Company. In relation to dtac TriNet, dtac TriNet has submitted a letter of undertaking to the NBTC that it will comply with the Foreign Dominance Notification at the time when it submitted the application for the 2.1 GHz license and Type III telecommunications license to the NBTC in 2012.
The NBTC may not agree with the Company’s interpretation mentioned above. As for dtac TriNet, it still has the risk from unclear enforcement of the law governing foreign dominance. However, based on the NBTC’s explanation to the public at the public hearing regarding the aim and objectives of the Foreign Dominance Notification and, in particular, the definition of “dominance” in 2012, the Company believes that the Company and dtac TriNet would not be regarded as a company under foreign dominance pursuant to the definition of “dominance” of the NBTC. Nevertheless, the risk from unclear enforcement of law governing foreign dominance may have a material effect on the business operation and business opportunities of the Company and dtac TriNet.
g. Determination of maximum tariffs by the NBTC
On 28 March 2012, the NBTC issued a Notification on Maximum Tariffs for Domestic Voice Service B.E. 2555 (2012) requiring operators having significant market power in the domestic mobile retail market (namely, AIS and the Company) to charge for service fee of not more than THB 0.99 per minute. The Company disagrees that the NBTC’s Notification applies only to certain operators and has challenged the issue before the Court. Currently, the case is being considered by the Court.
In September 2014, the NBTC issued a notification on the definition of significant market power but did not clearly specify the operators who are considered as having significant market power. It is possible that the NBTC may not specify the operators who will be considered as having significant market power if the NBTC considers the telecommunications industry to be fairly and appropriately competitive.
In addition, the NBTC requires 2.1 GHz telecommunications business licensees, including dtac TriNet, to reduce, on average not less than 15 percent of the average service fees for voice and non-voice services provided in the market on the date of obtaining the license. The Company is of the opinion that the condition to reduce the service fees is unclear. dtac TriNet and other licensees will have to discuss with the NBTC to obtain further clarification on this issue.
h. Risk from reduction of interconnection charge rate
On 12 March 2013, the NBTC issued an order No. 34/2556 requiring all 2.1 GHz telecommunications business licensees, including dtac TriNet, to apply a temporary rate for interconnection charge at THB 0.45 per minute.
On 18 June 2013, the NBTC requested the Company’s cooperation to comply with the resolution of the Telecommunications Commission No. 22/2556, which was held on 10 June 2013, by applying the interconnection charge or amending the interconnection agreement in relation to the interconnection charge for both mobile phone and fixed line services at the same rate of THB 0.45 per minute for call termination and call origination and THB 0.06 per minute for call transit.
In addition, the NBTC has a policy to review the interconnection rate applied by the operators, including the Company. Therefore, it is possible that the interconnection rate of the Company might be reduced, which may have an effect on the revenue from business operation of the Company and its subsidiaries.
i. Risk from disputes over excise tax and revenue sharing
The Government policy is still uncertain on the collection of excise tax from telecommunications services. In addition, in relation to the excise tax issue, CAT submitted a dispute to the Thai Arbitration Institute on 11 January 2008, demanding that the Company pays additional revenue sharing for the concessionary years 12 to 16, including penalty and VAT, in the amount of approximately THB 23,164 million. This was because, during said concessionary years, the revenue sharing was deducted by the excise tax paid by the Company to the Excise Department prior to making the revenue sharing payment to CAT in accordance with the Cabinet resolutions and the letter from CAT. On 28 May 2012, the Arbitral Tribunal rendered its decision to dismiss the dispute raised by CAT on the ground that the Company had fully paid the revenue sharing to CAT and all debts had already been settled. Nevertheless, CAT has appealed the Arbitral Tribunal’s decision before the Administrative Court. Currently, the case is being considered by the Court.
j. Risk from potential inaccessibility to telecommunications network to provide 2.1 GHz service
The NBTC has issued the NBTC Notification on Telecommunications Infrastructure Sharing for Mobile Phone Network B.E. 2556 (2013) (the “Infrastructure Sharing Notification”), which became effective on 30 April 2013. The substance of the Notification is the share of telecommunications infrastructure, including buildings and equipment for transmission and transmission system of the base station.
After the NBTC issued the Infrastructure Sharing Notification, CAT brought an action against the NBTC before the Central Administrative Court requesting a revocation of the Notification in respect of the right to allow telecommunications infrastructure sharing. CAT also submitted a petition for a stay of the enforcement of the Infrastructure Sharing Notification until the Court renders its decision. Nevertheless, the Central Administrative Court rejected CAT’s petition for a stay of the enforcement of the Notification.
Furthermore, CAT brought a case against the NBTC before the Central Administrative Court, requesting the Administrative Court to revoke the resolution of the NBTC which approved the reference access offer proposal of the Company pursuant to the NTC Notification on Interconnection. The substance of the NTC Notification is to require the licensees who have telecommunications network to allow other licensees to use their telecommunications network. CAT also submitted a petition for an injunction against the enforcement of the NBTC’s resolution. Nevertheless, the Central Administrative Court has rejected such petition. Currently, the case is also being considered by the Central Administrative Court.
On 11 June 2014, dtac TriNet received the claim that CAT filed before the Administrative Court claiming that dtac TriNet committed a wrongful act against CAT by installing its 2.1 GHz devices and equipment on the Company’s concessionary assets. CAT required that dtac TriNet uninstall its devices and equipment and prohibited dtac TriNet from installing its devices and equipment on the Company’s concessionary assets. CAT also demanded that dtac TriNet compensate for damages in the amount of THB 449,663,091.88 with interest at the rate of 7.5 per cent per year. If such devices and equipment are not uninstalled, CAT requested that dtac TriNet compensate for damages in the amount of THB 44,177,642 per month from the date of filing of the claim until the uninstallment is completed. CAT also submitted a petition for an injunction requesting the Court to prohibit dtac TriNet to install its 2.1 GHz devices and equipment on the Company’s concessionary assets. However, the Central Administrative Court rejected such petition. Currently, the case is also being considered by the Central Administrative Court.
On 1 October 2014, CAT filed a dispute to the Thai Arbitration Institute claiming that it has been damaged by the Company’s breach of Clause 2.1 and Clause 2.3 of the Concession by providing dtac TriNet access to the concessionary assets, and allowing dtac TriNet to install and connect its 2.1 GHz devices and equipment with the concessionary assets. Therefore, CAT requested for damages in the amount of THB 658,017,180 with interest at the rate of 7.5 per cent per year. If such devices and equipment are not uninstalled, CAT requested that the Company compensate for damages in the amount of THB 44,177,642 per month from the date of filing of the dispute until the uninstallment is completed. CAT also submitted a petition for an injunction requesting the Court to prohibit the Company from allowing dtac TriNet to install and connect its 2.1 GHz devices and equipment with the concessionary assets. The Central Administrative Court has issued an injunction prohibiting telecom equipment under concession to be interconnected with 2.1 GHz telecom equipment by dtac TriNet. The Company filed the Appeal with the Supreme Administrative Court against such injunction.
On 27 November 2015, the Supreme Administrative Court has revoked the Central Administrative Court’s injunction due to it may impact the service to public, thus, there is no sufficient ground to hold such injunction and that the Company could use and interconnect concession telecom network with dtac TriNet’s and other operators whilst the dispute resolution under the arbitration has not been finalized, and dtac TriNet is able to rapidly expand the network on the 2.1 GHz frequency band to cover all population area at a lower cost, which would enhance service users, especially those living in remote and suburban areas, to have greater opportunity to access the internet at a reasonable price. In addition, the sharing of telecommunications network reduces redundant investment cost and supports the effective use of existing telecommunications infrastructure resources which would be wholly beneficial to the telecommunications industry, service users nationwide and the country.
However, at present, there are filing of claims against the implementation of the Infrastructure Sharing Notification and the abovementioned NBTC resolution. If the Central Administrative Court renders a final judgment revoking such Notification and resolution, the operators who are concessionaires, including the Company, will not be able to share telecommunications infrastructure or telecommunications network with other operators, including dtac TriNet. This could impact revenues and could lead to higher cost on, the expansion of the telecommunications network and the provision of the telecommunications service on the 2.1 GHz frequency band of dtac TriNet.
2.1. The Thai telecommunications industry is highly competitive and sensitive to price competition
The Thai mobile telecommunications industry is highly competitive and sensitive to price competition due to the fact that the telecommunications market has grown considerably especially data service. There are high competition in terms of price, promotions and other marketing campaigns. If the price competition intensifies and the Company and dtac TriNet are unable to respond to such competition in a timely and cost-efficient manner, such competition may have a material effect on the result of business operations and business opportunity of the Company.
2.2. The Company may encounter higher competition with new operators
At present, a person who wishes to operate telecommunications business is entitled to freely apply for a telecommunications license from the NBTC if he or she has the qualifications stipulated by the laws and regulations set out by the NBTC. In addition, the NBTC has issued regulations which support a new operator to compete with the existing operators, e.g. the NBTC Notification on Domestic Mobile Network Roaming B.E. 2556 (2013) and the NBTC Notification on Infrastructure Sharing. Both notifications require existing operators who have the telecommunications network to allow the other operators to have access to their telecommunications network. Furthermore, the NBTC has issued the NBTC Notification on Mobile Virtual Network Service B.E. 2556 (2013), the substance of which is that after receiving approval from the NBTC, the operator who owns the telecommunications network can undertake a wholesale of the mobile service to the mobile virtual network operators, which would further increase business competition.
As such, legal reform and liberalisation of the telecommunications business may further intensify the competition in the market. The Company cannot predict the number of new entrants who will be granted licenses from the NBTC. If the NBTC issues the licenses to new operators, the competition in the market could become even more intense as the new operators, who may have lower operation costs, may adopt an aggressive pricing policy or employ a subsidy approach in order to increase their market share. This may affect the ability of the Company and dtac TriNet to compete in the market and may affect the business operations, and business opportunity of the Company.
3.1. Risk from interruption of network service system and other important systems which may have an impact on service users
The Company and dtac TriNet perceive the risks which may occur as a result of a disruption of the network system and other essential systems that could impact the provision of services. Therefore, the Company and dtac TriNet have continuously prepared for and developed plans to support emergency events and disruption of network system as well as other essential systems.
The Company and dtac TriNet have developed a network management system and prescribed maintenance procedures for the network and equipment so that all network and equipment function efficiently in order to provide telecommunications service to customers effectively, especially voice service and data service. In addition, the Company and dtac TriNet have also been developing plans to support the disruption of other essential systems, such as information system, billing system and customer services so that the services can be continuously provided to the customers. The Company and dtac TriNet also have a backup plan in case of emergency which covers an additional investment in important equipment and safety system e.g. fire protection system and real-time network and equipment monitoring system. The Company and dtac TriNet regularly conduct trainings for its staff on their responsibilities and relevant procedures, as well as strictly conduct a test run of the backup plans.
Furthermore, the Company and dtac TriNet has procured insurance policies to cover network and equipment damages in order to minimize the impact of such risk against the Company and dtac TriNet.
3.2. The Company has to rely on third parties to maintain telecommunications equipment
The Company provides mobile phone service through complex telecommunications equipment, including mobile telecommunications network and 2G/3G/4G base stations nationwide. Therefore, the success of the Company’s and dtac TriNet’s businesses (which may share some of the base stations with the Company to provide 2.1 GHz services) depends on the effective maintenance and repair of the network and equipment.
At present, the Company engages third parties to provide maintenance and repair services for some base station equipment and transmission network of the Company. If the third parties are unable to perform their duties under the agreement, or unable to perform their duties in a timely and cost-effective manner, the Company and dtac TriNet may have to bear higher operating costs. In addition, it may affect the speed and quality of the services of the Company and dtac TriNet.
The Company is exposed to the foreign exchange rate fluctuation risk as the principal revenues of the Company are denominated in Thai Baht currency, while parts of the company’s expenditures are denominated in foreign currencies. The majority of expenditures are capital expenditures.
In term of FX risk management, the Company utilizes USD revenue from International Roaming to partially match the USD expense (Natural Hedge). In addition, the company has established an agreement with suppliers to pay part of the capital expenditure in Thai Baht. For the remaining unhedged exposure, the Company will manage such risk by considering the proper of financial instruments.
Telenor and Thai Telco Holdings Co., Ltd. are major shareholders of the Company, holding collectively 65 per cent of the total issued shares of the Company (information as at 4 November 2015).
Thai Telco Holdings Co., Ltd. underwent a shareholding restructuring in July 2012, whereby Bencharongkul Group, the founder of the Company, now holds shares in the Company through Thai Telco Holdings Co., Ltd. Bencharongkul Group holds 51 per cent of the total issued shares of Thai Telco Holdings Co., Ltd.
As a result, Telenor and Thai Telco Holdings Co., Ltd. (including Bencharongkul Group) may exert influence over corporate decisions of the Company, except for matters which they are not eligible to vote due to any special interest or conflict of interest relating thereto.