Chương 2 Nghị định 101/2006/NĐ-CP: Đăng ký lại, chuyển đổi doanh nghiệp có vốn đầu tư nước ngoài

Chapter II

RE-REGISTRATION AND TRANSFORMATION OF FOREIGN-INVESTED ENTERPRISES

Article 6.- Forms of re-registration of enterprises

1. A joint-venture enterprise or an enterprise with 100% foreign capital with two or more owners shall be re-registered into a limited liability company with two or more members.

2. An enterprise with 100% foreign capital invested by a foreign organization or individual shall be re-registered into a one-member limited liability company.

3. A foreign-invested joint-stock company set up under the Government’s Decree No. 38/2003/ND-CP of April 15, 2003, shall be re-registered into a joint-stock company.

Article 7.- Dossiers of re-registration of enterprises

A dossier of re-registration of an enterprise comprises:

1. A written application for re-registration of the enterprise, signed by the representative at law of the enterprise.

2. The draft charter of the enterprise, which has been amended to comply with the provisions of enterprise law.

3. Valid copies of the investment license and modified licenses.

If, when making re-registration, the enterprise requests the modification of the contents related to business registration and the investment project, the above dossier must also comprise documents required by law for the modified contents.

The investment certificate-granting agency may not ask enterprises to submit papers other than those specified in this Article.

Article 8.- Order and procedures for re-registration of enterprises

1. The enterprise applying for re-registration shall submit a dossier specified in this Decree to the investment certificate-granting agency according to the provisions of Clause 2, Article 5 of this Decree and be accountable for the truthfulness and accuracy of the contents of the re-registration dossier.

2. Within 15 working days after receiving a complete and valid dossier, the investment certificate-granting agency shall consider and grant an investment certificate. If refusing to grant a certificate, or requesting modification of the dossier, it shall clearly notify in writing the enterprise of the reasons therefor.

Article 9.- Rights and obligations of re-registered enterprises

1. Re-registered enterprises shall take over all legitimate rights and interests, and be responsible for unpaid debts, labor contracts and other obligations of pre-reregistered enterprises.

2. A re-registered enterprise has the following rights:

a/ To operate under the investment certificate;

b/ To retain its registered name, seal, account and tax identification number.

c/ Other rights provided for in the Enterprise Law and the Investment Law.

3. A re-registered enterprise has the obligations defined in the Enterprise Law and the Investment Law.

Article 10.- Forms of transformation of enterprises

1. A joint-venture enterprise or an enterprise with 100% foreign capital with two or more owners shall be transformed into a one-member limited liability company.

2. An enterprise with 100% foreign capital invested by a foreign organization or individual shall be transformed into a limited liability company with two or more members.

3. A foreign-invested enterprise being a limited liability company shall be transformed into a joint-stock company and vice versa.

Article 11.- Conditions for transformation of enterprises

1. To be-transformed enterprises must satisfy the conditions set in the Enterprise Law applicable on a case-by-case basis.

2. When enterprises are transformed into joint-stock companies, owners of foreign-invested enterprises must be founding shareholders. When an enterprise has many owners, at least one of them must be a founding shareholder.

Article 12.- Dossiers of transformation of enterprises

1. A dossier of transformation of an enterprise comprises:

a/ A written application for transformation of the enterprise clearly stating the contents of transformation, signed by the representative at law of the enterprise;

b/ The draft charter of the enterprise, which is compliant with the enterprise law;

c/ The decision on enterprise transformation, issued by the owner of the enterprise with 100% foreign capital, the management board of the joint-venture enterprise, or the General Meeting of Shareholders of the foreign-invested joint-stock company. Such a decision must contain the following principal contents: names and addresses of the head offices of the pre-transformed enterprise and transformed enterprise; time limit and conditions for the transfer of property, contributed capital amounts, shares or bonds of the foreign-invested enterprise to the transformed enterprise; plan on employment of laborers; and time limit for transformation.

The decision on enterprise transformation must be sent to all creditors and notified to the enterprise’s laborers within 15 days after it is approved;

d/ Valid copies of the investment license and modified licenses.

2. When, upon transformation, new members are added, the above dossier must also comprise:

a/ For a new member being an individual: a copy of the identity card, passport or other lawful personal identification paper;

b/ For a new member being a legal person: a copy of the establishment decision, business registration certificate or other paper of equivalent validity of the legal person; the authorization decision, identity card, passport or other lawful personal identification paper of the authorized representative.

For a new member being a foreign legal person, the copies of the business registration certificate and charter must be authenticated by the agency where the legal person makes registration within 3 months before the date of submission of the dossier.

3. When, upon transformation, the enterprise requests modification of contents related to business registration and the investment project, the transformation dossier must also comprise documents required by law for the to be-modified contents.

Article 13.- Order of transformation of enterprises

1. The enterprise transformation may be carried out after or at the same time with the re-registration of foreign-invested enterprises.

2. The to be-transformed enterprise shall submit a dossier provided for in this Decree at the investment certificate-granting agency under the provisions of Clause 2, Article 5 of this Decree and be responsible for the truthfulness and accuracy of the contents of the enterprise transformation dossier.

3. Within 30 working days after receiving a complete and valid dossier, the investment certificate-granting agency shall consider and grant an investment certificate. If refusing to grant a certificate or requesting modification of the dossier, it shall clearly notify in writing the enterprise of the reasons therefor.

Article 14.- Rights and obligations of transformed enterprises

1. Transformed enterprises shall take over all legitimate rights and interests, and be liable for unpaid debts, labor contracts and other obligations of pre-transformed enterprises.

2. A transformed enterprise is entitled to operate under its investment certificate; to continue to enjoy investment preferences stated in the investment license, for licensed investment projects in which foreign investors hold at least 30% of the charter capital; and to other rights specified in the Enterprise Law and the Investment Law.

3. A transformed enterprise has the obligations defined in the Enterprise Law and the Investment Law.

Article 15.- Re-registration and transformation of enterprises in case of commitment to transfer assets without indemnification

1. Foreign-invested enterprises whose foreign investors have committed to transfer without indemnification the invested assets at the end of the operation duration to the Vietnamese Government may be re-registered or transformed under this Decree if satisfying the following conditions:

a/ Not changing the commitment to transfer their assets without indemnification, for licensed projects;

b/ Taking over and continuing to execute investment projects related to the assets which the foreign investors have committed to transfer without indemnification.

2. In case of changes in the contents related to the transfer without indemnification, the re-registration and transformation under the provisions of this Decree must be approved by the Prime Minister.