Chương 3 Nghị định 38/2003/NĐ-CP: Tổ chức hoạt động của công ty cổ phần có vốn đầu tư nước ngoài

Chapter III

ORGANIZATION AND OPERATION OF FOREIGN-INVESTED JOINT-STOCK COMPANIES

Article 10.- Shareholders of foreign-invested joint-stock companies

1. Joint-stock companies must have at least one foreign founding shareholder, the total value of shares held by foreign founding shareholders must be at least equal to 30% of the charter capital throughout the operating process of the companies.

2. Shareholders of joint-stock companies shall be responsible for their joint-stock companies’ liabilities and other property obligations within the limit of their capital amounts already contributed to the companies.

3. Shareholders shall be entitled to transfer their shares under the provisions of this Decree.

4. Shareholders may be organizations or individuals; the minimum number of shareholders is three and the maximum number is unlimited.

5. Foreign shareholders shall be entitled to participate in managing joint-stock companies.

Article 11.- Shareholder registers

1. Joint-stock companies must make and keep shareholder registers, which may take the form of documents, electronic files or both.

2. Shareholder registers must contain the following principal contents:

a/ The name and head office of the joint-stock company;

b/ Total quantity of shares entitled to be offered for sale, types of shares entitled to be offered for sale and the quantity of shares of each type entitled to be offered for sale; total quantity of shares held by foreign shareholders;

c/ Total quantity of shares of each type already sold and the value of share capital already contributed;

d/ The names, nationalities and addresses of shareholders, each shareholder’s quantity of shares of each type, his/her/its share registration date.

3. The shareholder registers shall be kept at the joint-stock companies’ head offices or elsewhere, which must be notified in writing to the Ministry of Planning and Investment and all shareholders.

Article 12.- Share certificates

1. Share certificates of joint-stock companies are certificates issued by the joint-stock companies, certifying the ownership of one or a number of shares of shareholders contributing capital to the companies.

2. The par value of joint-stock companies’ share certificates shall be inscribed in Vietnam Dong or a common freely convertible foreign currency. All share certificates traded in Vietnam must be denominated in Vietnam Dong. The rate of exchange between Vietnam Dong and a foreign currency is the average transaction exchange rate on the inter-bank foreign exchange market, announced by the State Bank of Vietnam at the time of exchange.

3. Foreign founding shareholders must hold registered share certificates at least corresponding to the value of shares specified in Clause 1, Article 10 of this Decree.

4. A share certificate must contain the following principal contents:

a/ The name and head office of the company;

b/ The serial number and date of issuance of the adjusted investment license approving the enterprise transformation;

c/ The quantity of shares;

d/ The type of share;

e/ The par value of each share and the total par value of shares inscribed on the share certificate;

f/ The name and nationality of the shareholder holding the share certificate, for registered share certificates;

g/ Summarized procedures for share transfer;

h/ Specimen signature of the representative at law and the seal of the company;

i/ The registration number in the company’s shareholder register and the date of issuance of the share certificate;

j/ For share certificates of preferential shares, they shall have other contents as prescribed in Clause 3, Article 19 of this Decree.

Article 13.- Rights and obligations of foreign-invested joint-stock companies

1. To be exempt from registration fee for the transformation of the enterprise’s property ownership into the company’s ownership.

2. To inherit the rights and obligations of the transformed enterprises towards the Vietnamese State, third parties and laborers.

3. To continue executing the approved investment projects, paying unpaid debts and fulfilling other financial obligations of the transformed enterprises.

4. Joint-stock companies’ shareholders shall fulfil tax obligations as prescribed by law.

5. Joint-stock companies shall enjoy enterprise income tax-related preferences, settle arising disputes and have other rights and obligations as prescribed by the Law on Foreign Investment in Vietnam and the investment licenses granted before transformation.

Article 14.- Listing on the securities market

1. Joint-stock companies may be listed on the domestic securities market under the law provisions on the securities market.

2. Joint-stock companies may be listed on overseas securities markets after obtaining the approval of competent Vietnamese State bodies.

Article 15.- Transfer of share certificates of foreign founding shareholders

1. In the course of operation, foreign founding shareholders may transfer their shares to foreign organizations and individuals.

2. The transfer of shares held by foreign founding shareholders to Vietnamese organizations and/or individuals must be approved by the Ministry of Planning and Investment and comply with the provisions in Clause 1, Article 10 and Clause 3, Article 12 of this Decree. Foreign founding shareholders must reinvest in Vietnam the money amounts earned therefrom; if they wish to transfer them abroad, they must obtain the approval of competent bodies.

Article 16.- Dissolution of foreign-invested joint-stock companies

Joint-stock companies shall be dissolved in the following cases:

1. No extension decision is issued upon the expiry of the operating duration inscribed in their Charters;

2. By decisions of the shareholders’ general assemblies;

3. The companies fail to maintain the minimum quantity of shareholders for six consecutive months;

4. Having their investment licenses withdrawn.

Article 17.- Order of operation termination, asset liquidation, dissolution

The termination of operation, liquidation of assets and dissolution of joint-stock companies shall be effected in the following order:

1. The Ministry of Planning and Investment issues a decision on terminating the operation of the joint-stock company;

2. The joint-stock company shall have to set up a Liquidation Board for liquidating its assets;

3. After the completion of the liquidation, the joint-stock company shall submit the liquidation dossier to the Ministry of Planning and Investment for consideration and decision.

Article 18.- Bankruptcy of joint-stock companies

The bankruptcy of joint-stock companies shall comply with the provisions of the Vietnamese legislation on enterprise bankruptcy.

Article 19.- Application of a number of provisions of the Enterprise Law to foreign-invested joint-stock companies

1. Shares shall be categorized under the provisions of Article 52 of the Enterprise Law.

2. The rights and obligations of ordinary share-holders shall comply with the provisions in Articles 53 and 54 of the Enterprise Law.

3. The rights of preferential shareholders shall comply with Articles 55, 56 and 57 of the Enterprise Law.

4. The sale offer, transfer, purchase and re-purchase of shares, conditions on payment and handling of re-purchased shares; payment of dividends, recovery of money amounts for payment of re-purchased shares or dividends shall comply with the provisions in Articles 61, 63, 64, 65, 66, 67 and 68 of the Enterprise Law and Article 15 of this Decree.

5. The managerial and organizational structures of joint-stock companies, shareholders’ general assemblies and organization of shareholders’ general assemblies shall comply with the provisions in Articles 69, 70,71, 72, 73, 74, 75, 76, 77, 78, 79 and 87 of the Enterprise Law.

6. The organization, powers, tasks and operation of the Managing Boards of joint-stock companies shall comply with Articles 80, 81, 82, 83, 84 and 87 of the Enterprise Law.

7. The appointment, rights and obligations of directors (general directors) and managers of the companies shall comply with the provisions in Articles 85 and 86 of the Enterprise Law.

8. The rights and tasks of the Control Boards of joint-stock companies shall comply with Articles 88, 89, 90 and 91 of the Enterprise Law.

9. The audit, information publicity and archival regime of joint-stock companies shall comply with the provisions in Articles 92, 93 and 94 of the Enterprise Law.