Chương V Nghị định 48/2017/NĐ-CP: Đầu tư kinh doanh và quản lý vốn đầu tư của SCIC

Chapter V

BUSINESS INVESTMENT AND MANAGEMENT OF INVESTMENTS OF SCIC

Section 1. BUSINESS INVESTMENT

Article 50. Business investment

Receipt of the rights of the state owner’s representative to SCIC, sale of state capital that SCIC has received and directly invested and SCIC’s capital investment and business activities shall be subject to the Government’s regulations on SCIC’s functions, duties and operational mechanisms.

Article 51. Other operations

1. Consultancy

SCIC shall be provided with such consultancy services as investment, finance, equitization, corporate management, ownership transition, corporate merger and acquisition, and other corporate support services prescribed by law.

2. Financial investment

SCIC shall be established or shall contribute capital to establishment of fund management companies, investment trusts and other forms of financial investment as prescribed in laws and the Government’s regulations on functions, duties and operational mechanisms of SCIC and this Charter.

3. Receipt of investment trust

SCIC may receive investments in trust for the State and other domestic and foreign organizations or individuals for investing purposes and may be paid fiduciary fees agreed upon in trust agreements.

4. Other activities stipulated in law.

Section 2. SCIC’S CONTROL OVER SCIC-INVESTED ENTERPRISES

Article 52. SCIC’s control over wholly SCIC-owned single-member limited liability companies (hereinafter referred to as SCIC-controlled companies)

1. SCIC can make decisions on establishment, reorganization and transformation of ownership of SCIC-controlled companies after receipt of the Prime Minister’s decision on approval of policies for such activities; on their charter capital upon establishment, objectives, duties and their business lines; on adjustment to their charter capital during the period of operation, dissolution and petition for bankruptcy of SCIC-controlled companies.

2. SCIC may adopt and impose Regulations on financial management of SCIC-controlled companies.

3. SCIC may make decisions on appointment, re-appointment, discharge, rewarding and disciplining of Chairpersons, members of Board of Directors or Presidents, Director Generals, Directors or Comptrollers of SCIC-controlled companies.

4. SCIC may approve 5-year investment and development plans and strategy, and annual business plans of SCIC-controlled companies.

5. SCIC may approve and revise charters of SCIC-controlled companies.

6. SCIC may grant these companies approval of their plans for mobilization of capital, projects for investment in construction, purchase and sale of fixed assets which account for more than 50% of equity of these companies specified in financial statements made in the most recent quarter or year preceding the date on which such activities and projects take place to the extent that such investment is not greater than the allowable amount of funding for group-B projects as provided in the Law on Public Investment or makes up another percentage of equity specified in their Charters.

7. SCIC may approve financial statements, distribution of profits and setting aside of part of profits for formation of annual funds of SCIC-controlled companies.

8. SCIC shall implement other rights and obligations as stipulated by law.

Article 53. SCIC’s management of its portions of contributed and received capital at joint stock companies and multiple-member limited liability companies

1. SCIC can make decisions or seek a competent regulatory authority’s decisions on investment in increase or decrease in capital, recovery of capital or disposition of its rights to purchase of capital and contribute capital to joint stock companies or multiple-member limited liability companies under the provisions of laws and SCIC’s Charter.

2. SCIC shall regulate eligibility criteria for, designation, discharge, dismissal, rewarding, disciplining, decisions on wages, salaries, allowances, bonuses and other benefits of representatives for SCIC's shares according to Article 55, 56, 57, 58 and 59 herein.

3. SCIC may assign tasks to representatives of SCIC’s shares in protecting SCIC’s legitimate rights and interests at joint stock companies or multiple-member limited liability companies.

4. SCIC may authorize SCIC’s representatives of its shares to request joint stock companies or multiple-member limited liability companies to transfer profits, distributed dividends or recovered capital to SCIC; oversee recovery of investments, collection of profits and distributed dividends in a timely manner.

5. SCIC may request representatives of SCIC’s shares to report on their assigned duties, rights and responsibilities to/for orientation of enterprises in which SCIC’s shares or portions of contributed capital make up more than 50% of their charter capital towards implementation of its general business objectives and strategies.

6. SCIC shall request representatives of SCIC's shares to prepare and submit periodic or irregular review reports on financial conditions and business activities of joint stock companies or multiple-member limited liability companies.

7. SCIC shall inspect and oversee activities of representatives of SCIC’s shares in order to prevent and take timely actions against their errors or mistakes.

8. SCIC shall implement other rights and obligations as stipulated by law.

Article 54. Methods for controlling and managing state investments in enterprises

1. SCIC shall directly manage or take control of state investments in enterprises through representatives authorized by laws currently in force, SCIC's Charter and Regulations on SCIC’s representatives that are adopted and promulgated by SCIC’s Board of Directors.

2. Forms of designation and authorization of representatives:

a) SCIC shall designate or authorized representatives through its decision to authorize a representative of SCIC’s shares to enterprises;

b) In cases where SCIC does not designate or mandate its representative, it may directly carry out rights and obligations of a shareholder, a member making capital contribution or business partner in another company in accordance with the Law on Enterprises;

c) Other forms of authorization shall be subject to SCIC’s Regulations on representatives.

Section 3. REPRESENTATIVES OF SCIC’S SHARES IN OTHER ENTERPRISES

Article 55. Representatives of SCIC’s shares

1. They shall be designated or authorized to represent part or all of SCIC’s shares in enterprises in order to entirely or partially carry out rights, responsibilities and obligations of a state shareholder or member contributing capital to enterprises in accordance with laws and SCIC’s regulations, including the followings:

a) Representatives who are officeholders that work for SCIC, are designated or authorized by SCIC to act as full-time or part-time representatives to enterprises;

b) Representatives who are officeholders that work for enterprises, are designated or authorized by SCIC to act as representatives, or SCIC allows remaining in office upon acceptance of transfers of enterprises;

c) Representatives who are persons who are designated by competent regulatory authorities as representatives holding dual office at enterprises before these enterprises dispose of their capital to SCIC, and whom SCIC allows to continue to hold the post of representative in accordance with laws;

d) Representatives that fall in other cases prescribed in SCIC’s Regulations on representatives.

2. In case where SCIC designates multiple representatives to an enterprise, the proportion of capital held by each representative must be clearly regulated and a person charged with the general supervision of these representatives must be assigned.

3. The term of authorization of a representative shall not exceed 05 years and shall correspond to the tenure of the Governing Board or the Board of Directors of a SCIC-invested enterprise. In case where that representative obtains authorization amidst such tenure, the term of authorization of that representative shall be equal to the number of days left within such tenure.

4. Designation, discharge, dismissal and resignation of a representative, termination of representative’s rights, assessment of a representative’s performance and forms of handling of violations committed by a representative shall be subject to laws and SCIC’s Regulations on representatives.

Article 56. Eligibility criteria and requirements of a representative

1. Being a Vietnamese citizen permanently residing in Vietnam.

2. Meeting regulatory requirements concerning political qualities, ethics, civil capacity and health in order to fulfill assigned duties.

3. Having legal expertise and awareness of compliance with laws.

4. Demonstrating professional competency, qualification and past performance in engaging in duties in conformity with requirements of the representative post.

5. Not being kept in custody while in office, not waiting for decisions on disciplinary actions, and not being subject to investigation, prosecution, court proceedings and not serving prison sentence, or not being susceptible to disciplinary actions.

6. Not a wife, husband, blood father, foster father, blood mother, foster mother, natural child, adoptive child, younger or older blood brother, blood sister, younger or older brother or sister-in-law of the Chairperson or member of the Board of Directors, Chairperson and member of the Governing Board, the President, the Comptroller, Director General or Director, Deputy Director General or Deputy Director or Chief Accountant of an SCIC-invested enterprise.

7. Meeting other standards according to laws and SCIC’s Regulations on representatives.

Article 57. Rights and responsibilities of representatives

1. A representative’s rights:

a) Carry out rights to represent the capital owner in trust for SCIC;

b) Participate as a candidate for a member of the corporate management and governance machinery of a SCIC-invested enterprise under the regulations on representatives, a trust agreement on capital representation between a representative and SCIC and other provisions of relevant laws;

c) Supervise and protect sound rights and interests related to portions of state capital at SCIC-invested enterprises in accordance with laws and SCIC’s Regulations on representatives;

d) Receive compensation packages and bonuses prescribed by laws and SCIC’s Regulations on representatives;

dd) Exercise other rights according to laws and SCIC’s Regulations on representatives.

2. Representative’s responsibilities:

a) Report to and consult with SCIC-invested enterprises serving as principals sending them before contributing opinions, casting votes and making decisions at a shareholders' general meeting or meeting of the Governing Board or the Board of Directors on the following matters:

- Scope of business, investment and developmental objectives, duties, strategies and plans, business proposals;

- Promulgation and revision of the charter; increases or decreases in the charter capital; appointment, discharge, dismissal, rewarding and disciplining of any member of the Governing Board, Board of Directors, Director General or Director, Deputy Director General or Deputy Director.

- Profit distribution and setting aside of profits for formulation of annual funds of a SCIC-invested enterprise;

- Reorganization, dissolution and bankruptcy;

- Other matters under the jurisdiction accorded the shareholders’ general meeting, the Governing Board or the Board of Directors.

b) Submit timely reports on losses, payment incapacity and failure to fulfill assigned tasks and other violations of joint stock companies or multiple-member limited liability companies;

c) Compile and submit quarterly, annual and spontaneous review reports on business conditions and financial status, enclosing recommended solutions, upon the request of a SCIC-invested enterprise or a representative of shares thereof;

d) Request joint stock companies or multiple-member limited liability companies to pay SCIC profits or share dividends proportionate to SCIC’s portions of capital contribution to these companies in a timely manner;

dd) If a representative fails to carry out assigned rights and responsibilities, or has no longer met prescribed eligibility standard, he/she shall be deprived from representative’s rights;

e) Assume responsibility to laws for any violation resulting in any loss of a SCIC-invested enterprise’s capital and assets.

g) Take on other obligations according to laws and SCIC’s Regulations on representatives.

Article 58. Compensation, bonus packages and other benefits of representatives

A representative shall be entitled to receive remuneration and responsibility allowances (if any), bonuses and other benefits prescribed in laws or SCIC’s Regulations on representatives.

Article 59. Designation, discharge and dismissal of representatives and other matters relating to representatives

Designation, discharge, dismissal and resignation of a representative, termination of representative’s rights, assessment of a representative’s performance and forms of handling of violations committed by a representative shall be subject to laws and SCIC’s Regulations on representatives.

Section 4. RELATIONSHIPS BETWEEN SCIC AND ITS SUBSIDIARIES OR AFFILIATES

Article 60. Ownership type-specific relationships between SCIC and its subsidiaries or affiliates

1. SCIC’s rights and obligations to its subsidiaries and affiliates shall be subject to regulations laid down in Article 52 and 53 herein.

2. The Board of Directors acting in the name of SCIC shall take charge of carrying out rights, obligations and responsibilities at single-member limited liability companies of which charter capital is wholly owned by SCIC; managing SCIC’s portions of investment in affiliates through its representatives as provided in Article 52 and 53 herein.

Article 61. Intra-SCIC relationship and collaboration

1. SCIC shall play its role as representative for its subsidiaries or affiliates to deal with relationship with domestic or foreign third parties, or perform other activities in the SCIC’s name according to an agreement between SCIC and its subsidiaries or affiliates, and provisions of relevant laws.

2. SCIC may take over rights and obligations of state owners, shareholders and members of subsidiaries and affiliates to decide, coordinate and orient operations of these companies in accordance with laws and this Charter.

Article 62. Responsibilities of SCIC for general management and governance

1. Bear responsibility to the state owner’s representative agency to SCIC for accomplishment of business objectives of main business lines and others under the regulations adopted by such agency. Be put under the supervision by the state owner's representative agency to SCIC in terms of investment portfolios and key investment projects under the Government's regulations.

2. Take control of SCIC’s investment portfolios in order to meet investment requirements and match the professional structure according to law; oversee and monitor SCIC’s investment portfolios at subsidiaries; supervise scopes of business of subsidiaries.

3. Provide information and reports on SCIC’s operations as per law.

4. Initiate and conduct supply of services to SCIC member enterprises.

5. Report to competition authorities and be put under the supervision by competition authorities with respect to the economic centralism inside SCIC.

6. Carry out corporate obligations relevant to registered business types and others under laws.

7. Develop and implement the system for performance assessment of SCIC’s authorized representatives to its member enterprises.

8. Formulate and implement policies granted to managerial personnel at SCIC and for SCIC's authorized representatives to its member enterprises.

9. Instruct subsidiaries to establish uniform administration and accounting systems and concentrated funds.

Article 63. SCIC’s internal Management and governance practices delivered through forms of investment and connection

SCIC may use the following forms in order to ensure connectivity between subsidiaries and affiliates;

1. Invest in, purchase and sell products and services; give technological support; develop brands by cooperation between member enterprises in accordance with laws.

2. Make agreement on SCIC’s internal credit system and credit guarantee mechanism in accordance with laws.

3. Organize conferences or consultative meetings;

a) Between SCIC's senior staff and authorized representatives to subsidiaries and affiliates in order to orient, regulate and coordinate SCI’'s operations and inform details of SCIC’s important growth strategies and guidelines;

b) Between SCIC’s functional units, subsidiaries and affiliates in order to disseminate professional matters.

Article 64. SCIC’s internal management of its business scope

SCIC, its subsidiaries and affiliates may register its main business lines and others related thereto; shall be kept under the supervision by the state owner's representative agency to SCIC and its owners with respect to investment, proportion of investment and return on investment in main business lines and others related thereto.

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