Chương 4 Nghị định 111/2007/NĐ-CP: Tổ chức lại, chuyển đổi doanh nghiệp theo hình thứ ccông ty mẹ - công ty con

Chapter 4:

REORGANIZATION, CONVERSION OF ENTERPRISE UPON THE FORM OF PARENT-SUBSIDIARY COMPANY

Article 34. Object of reorganization, conversion

1. The reorganization, conversion of state corporations upon the form of parent company - subsidiary company aiming to move from association according to administrative style with mechanism of assigning capital to the close association by machanism of financial investment as majority; clearly identifying the interests and responsibilities on capital and economic interests between the parent company with subsidiaries and associated companies; strengthening the business capacity for the units participating in association; creating conditions to develop economic groups.

2. The reorganization, conversion of independent state-owned companies, independent accounting member companies of corporations upon the form of parent company - subsidiary company aiming to create conditions of capacity development, the scale and business scope of the company, promoting the accumulation of capital, using financial resources and other resources of the company to invest in, contribute capital and participate in association with other enterprises, accelerating the equitization and diversification of ownership of the member units of the company.

3. To convert the parent companies being state-owned companies into the form of one member limited liability company or shareholding company under the provisions in clause 1 Article 166 of the 2005 Enterprise Law.

Article 35. Subjects of reorganization and conversion

The following subjects meeting the conditions specified in Article 36 of this Decree shall be reorganized, converted upon the form of parent - subsidiary company that parent company is one member limited liability company owned by the State:

1. The corporations decided to establish by the State.

2. State-owned company is subsidiary company in the corporations that has decided to be converted to the form of parent - subsidiary company but not yet completed the conversion.

3. The independent accounting member companies of the corporation decided to invest and set up by the State.

4. The independent State-owned company.

Article 36. Conditions of reorganization and conversion

1. For state-owned corporation, it must meet the following conditions:

a) All member units, which have been or are being converted or its list has been approved by the competent authority and the equitization plan or convesion into form of one member limited liability company to complete the structure including parent companies, subsidiaries, associated companies.

b) The parent company expected to establish must meet sufficient conditions of conversion into the one member limited liability company as defined in Decree No.95/2006/ND-CP dated September 08, 2006 of the Government and Decision of the Prime Minister on the criteria for classification of state-owned companies.

c) The parent company has large size, ability to use its funds or feasible plan to raise capital and invest enough capital in subsidiaries, associated companies to dominate the subsidiaries, use of secret technology, brand and market to dominate its subsidiaries.

d) The Corporation has the ability to develop, do business multi-lines in which have a primary business line; there are many subsidiary units in the country and foreign countries.

2. For independent state-owned companies, independent accounting affiliates of the corporation; it must meet the following conditions:

a) To be able to organize into parent company with large size or the parent company having the ability to use financial resources, technological know-how, brands, markets to make the capital investment, dominate other enterprises.

b) The parent company expected to establish must meet sufficient conditions of conversion into the one member limited liability company as defined in Decree No. 95/2006/ND-CP September 08, 2006 of the Government and Decision of the Prime Minister on the criteria for classification of state-owned companies.

c) Being have dominant shares, contributed capital in many other enterprises or being approved by the Prime Minister (if being member enterprise of the corporation decided to establish by the the Prime Minister), the Minister, the provincial-level People's Committees (if being independent state-owned company) the equitization plan of parts of the company (other than parts forming parent company), or approved contribution, investment plan over 50% of the charter capital of the company into the other companies to hold dominant shares, contributed capital in these companies.

Article 37. Mode of organization and conversion for corporation, independent accounting member company of the corporation

1. The State-owned Corporation meets the conditions specified in clause 1 Article 36 of this Decree, depending on the nature of business lines, technology, business relations, capital investment and the nature of interdependence between the corporation with member units and between member units together, may be reorganized according to the following methods:

a) Offices, management agencies of the corporation, the dependent accounting member units, business units together with one or a number of independent accounting member companies having key positions in the corporation or operation in the field of main business lines of the corporation shall be reorganized into parent company. In case of conversion and reorganization of corporation with large size that the including one or more independent accounting member companies into parent company is not necessary, may organize the offices and management agencies of the corporation, the dependent accounting member units, business units into the parent company.

The enterprises meeting the provisions in clause 1 of Article 31 of this Decree become the subsidiaries, the enterprises having non-dominant contributed capital become the associated companies.

b) Where the conversion of the entire-business-lines accounting corporation, the offices and management agencies of the corporation and the dependent accounting member companies having key positions in the corporation or operation in the field of main business lines of the corporation shall be reorganized into parent company.

The enterprises meeting the provisions in clause 1 Article 31 of this Decree become the subsidiaries; the enterprises having non-dominant contributed capital become the associated companies.

c) Where the corporation operating in the form of parent - subsidiary company that there is still the parent company, subsidiary company being the state-owned companies, then only convert such parent company and subsidiary company into one member liability limited company or shareholding company depending on the conditions provided in clause 1 Article 36 of this Decree.

2. Independent accounting member companies of the corporation meeting sufficient conditions specified in clause 2 Article 36 of this Decree, depending on technology characteristic, depending nature and investment relationship that has been formed with corporations, may be separated into the independent parent company or remain in the structure of corporation.

3. The business units, institutes and schools to be of the corporation, depending on the extent and requirements associated with the parent company on capital, finance, technology, market, research, training, may be converted into the dependent accounting division of the parent company or converted into subsidiaries, associated companies.

Where the research institute to be of corporation frequently applying research results and technology transfer to manufacture, trade, having contributed capital in the enterprises applied research results by the institute, if they satisfy the conditions on the parent company as specified in clause 2 Article 36 of this Decree, may be converted into the independent parent company or remain in the structure of corporation.

4. The parent company that was formed after the conversion must be held in the form of one member limited liability company. The order and procedures of conversion into one member limited liability company shall comply with the Decree No.95/2006/ND-CP dated September 08, 2006 of the Government.

In case of conversion into the parent company in the form of shareholding companies, it shall comply with the provisions in clause 3 Article 47 of this Decree.

Article 38. Modes of reorganization, conversion for the Independent State-owned company

1. Independent state-owned company meeting sufficient conditions specified in clause 2 Article 36 of this Decree converted into the parent company; the dependent-accounting units, depending on the size and nature of capital investment of the independent State-owned company, the importance and strategy of the independent state-owned companies, may be converted into one of the forms of subsidiaries defined in clause 2 Article 31, associated companies specified in clause 3 Article 31 of this Decree.

2. Form of parent company is in compliance with provisions in clause 4 Article 37 of this Decree.

Article 39. Competence and procedures of making, approving list, plans of conversion

1. Ministries and provincial-level People's Committees make list, conversion plan of corporations, independent state-owned companies decided to establish by the Ministry, the provincial-level People's Committees. The Management Board of the corporation decided to establish by the Prime Minister make conversion plan of corporations and the list of converting independent accounting member company of the corporation.

2. Based on conditions prescribed in Article 36 of this Decree and the actual state of the corporation, independent accounting member companies of the corporation, independent state-owned companies:

a) Ministries and provincial-level People's Committee decide to approve the list, plans and the conversion of the corporation, independent accounting member companies of the corporation, independent state-owned companies dedided to establish by its own.

b) Management Board of the corporation decided to establish by the Prime Minister submits to the Prime Minister for approving the plan of conversion of corporation and the list of independent accounting member companies of the corporation to be converted.

Article 40. Responsibilities of the corporation, state-owned company to be converted

1. Corporation, independent accounting member companies of corporation, independent state-owned company (hereinafter called as the corporation, company) allowed to select and approve list and conversion plan, reorganize into corporation upon the form of parent - subsidiary company are responsible for:

a) Reviewing each member unit, all corporations, companies, compared with conversion conditions, determining the structure and mode of conversion, the legal form of the parent company and each subsidiary.

b) Inventorying, classifying, determining the types of capital, assets, liabilities and current employees; determining the total estimated capital of parent company, the parent company's estimated capital invested in each one member liability limited company owned by itself and in the enterprises which have dominate or non-dominant capital of the parent company; making financial report to the time of conversion.

c) Developing conversion scheme, reorganizing corporations, companies upon the form of parent - subsidiary companies and plans of dealing with capital, assets, finance and labor when converting.

Conversion, reorganization scheme must include at least the following contents: the actual status of business organizations, managerial organization; production, business result of the corporation, company and each member unit; situation of finance, investment, capital contributions of corporations, companies and each member unit in the other enterprises; expecting structure, the number and types of subsidiaries, associated companies; model, organizational structure, functions and duties of the parent company; methods of reorganization, conversion, conversion plan estimation upon the form of parent - subsidiary company; expecting the plan of transfering benefits, obligations, assets, liabilities, labor for the parent company and each subsidiary; changes on production and business after the conversion.

d) Making charter draft of the parent company and subsidiary, in which the relationship between parent company and subsidiary must be clearly determined.

2. The corporations, companies that in fact have formed the structure of member unit meeting the conditions specified in Article 55 of the Law on State-owned Enterprises are not required to make the conversion scheme, only to implement the provisions in point d clause 1 of this Article.

Article 41. Submission, approval of scheme and decision on conversion

Submission, approval of scheme and decision on conversion upon order, procedures as follows:

1. Person who decides to establish the corporation, independent state-owned company, independent accounting member company of the corporation is the person approving the conversion scheme, deciding on the route and the conversion of the corporation, company; approving charter of the parent company.

2. Decision of conversion must have at least the following contents: name, address, legal form of the parent company and subsidiaries, associated companies; objectives, lines of business, charter capital of the parent company; number and the capital ratio of the parent company in each subsidiary, associated company; the liability of parent company and each subsidiary for the consuming of the rights, obligations and handling of existing and arising problem during the course of conversion.

Where the conversion upon the form of parent - subsidiary company that the parent company is one member limited liability company, the decision of conversion must have the following additional contents: name and address of the organization being owner and individuals who are appointed to be proxy to exercise the rights and obligations of owners of parent company.

Article 42. Principles of handling capital, assets, finance and labor when converting

1. All assets of the corporation, independent accounting member company, and independent state-owned company are calculated by value when converting.

2. The existing assets to be of ownership of the corporations, independent accounting member company and independent state-owned company shall be inventoried, classified, determined quantity, the real status. The existing assets to form asset directly managed by parent company and the assets transferred to the subsidiary being one member limited liability company, shall not required to re-valuate assets value. The case of change of ownership must revaluate the assets value at market price in accordance with the law regulations on ownership conversion.

3. Leased, borrowed, kept or deposited assets: the new company formed after the conversion, reorganization shall continue to rent, borrow, kept or receive deposite under the agreement with persons who have assets for lease, loan and deposit.

4. Redundant assets having no need to use, congested awaiting liquidation, asset lost and other damages on assets are handled in accordance with current legislation.

5. Principle of handling liabilities:

a) For collection debts of the corporation, independent accounting member company, independent state-owned companies converted to the parent company and collection debts of the arranged, restructured, converted member units of State-owned corporations, independent state-owned companies, independent accounting member companies of the state-owned corporations: the parent company and rearranged, reorganized, converted affiliates of State-owned corporations, independent state-owned companies, independent accounting member companies of the state-owned corporations are responsible for receiving and recovering the due debts be able to collect. For the collection debts but unable to recover, after determining clearly the cause and the responsibility of collective, individuals; the company shall be responsible for receiving and recovering the debts accounted capital reduction of ownership for the difference between the value of losses and compensation levels of collective or individuals.

b) For the payable liability: newly formed parent company, the arranged, restructured, converted member units of State-owned corporations, independent state-owned companies, independent accounting member companies of the state-owned corporations are responsible for assuming payable liabilities to creditors as committed, including tax debts, the budget debts, officers and employees debts; paying due debts according to the plan already approved by competent authorities. The unclaimed payable liabilities and assets value unable to determine its owners shall be calculated in the owner's capital in the parent company and the new formed subsidiaries after the conversion. The handling of payable liabilities of the member company converted into Shareholding Company shall comply with the regulations on equitization of state-owned companies.

6. Parent company and subsidiaries established on the basis of conversion and reorganization of the member units of state-owned corporations or independent state-owned companies, independent accounting member companies of the state-owned corporations are responsible for continuing to use the existing number of employees, assuming all rights and obligations to employees in accordance with the plan already approved by competent authorities and in accordance with the law regulations on rearrangement, reorganization and equitization, conversion of state-owned companies into one member limited liability company; the number of redundant employees is handled under the general policy in the process of reform and restructuring of state-owned companies. The employees who voluntarily terminate their labor contracts are entitled to enjoy their regimes under the law regulations on labor.

Article 43. Principle of determining charter capital of parent company

1. Charter capital of the parent company was formed from the conversion of companies, independent accounting member companies of the corporation, independent state-owned companies is the capital which invested by the State and recorded in the charter of parent company, including:

a) Actual State capital on the accounting books at the time of conversion settled centrally accounting in corporation, independent accounting member companies of the corporations, independent state-owned companies.

b) Charter capital of one member limited liability Company owned by the corporation, independent accounting member companies of the corporation, independent state-owned companies.

c) State Capital contributed in the shareholding companies, limited liability companies with two or more members and invested abroad by the corporations, independent accounting member companies of the corporation, independent state-owned companies.

d) State capital invested addition in the parent company (if any) in case of converting corporations, independent state-owned companies; corporation capital invested addition in the parent company (if any) in case of converting independent accounting member companies of the corporation.

đ) After-tax profit is reinvested and extracted for addition into charter capital.

2. Charter capital of the parent company is not less than the capital level upon criteria, the list of classification of state-owned companies and state-owned corporations issued by the Prime Minister:

a) For the parent company converted from a corporation: not less than the capital level prescribed for state-owned corporation.

b) For the parent company converted from independent accounting member companies of the corporation or independent state-owned companies: not less than the capital level prescribed for state-owned companies.

3. When decreasing or increasing charter capital, the parent company must promptly adjust in the balance sheet, register with the business registration agency.

Article 44. Business registration and registration of assets

1. Parent company and each subsidiary company after the conversion must be re-registered under the law corresponding to the legal form of such companies.

2. Member company that before the conversion was the one member limited liability company or Shareholding Company shall not be required for re-registration.

3. The naming for the parent company converted from state-owned corporations, the parent company in the form of parent - subsidiary company, parent company in the economic group shall comply with the provisions of Decree No.88/2006/ND-CP dated August 29, 2006 on business registration.

4. After being granted the business registration certificate, the parent company and each subsidiary must make the procedures of registration of property ownership transferred from the corporations or member companies at the competent state agency. All assets transferred ownership from the corporations or member companies to parent companies, subsidiaries are not required to pay enregistrement fee.

Article 45. Receipt of rights and obligations of converted corporation

The parent company and member units reorganized from the conversion of corporations decided to invest and set up by the State is responsible for assuming the lawful rights, benefits and obligations of the corporation, member companies converted.

Article 46. Rights and obligations of state ownership for the parent company after the conversion

For enterprise being converted into the parent company that is one member limited liability company owned by the State, the organization assigned as the owner exercising the rights and obligations of owner for parent company under the provisions of Article 64, Article 65 and Article 66 of the Enterprise Law and related legislation.

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