Chương 4 Nghị định 38/2003/NĐ-CP: Tổ chức thực hiện

Chapter IV

ORGANIZATION OF IMPLEMENTATION

Article 20.- Dossiers of application for transformation

Dossiers of application for transformation shall be addressed to the Ministry of Planning and Investment with 8 (eight) sets, of which at least 1 (one) set is the original; each set comprises:

1. The application for transformation, signed by the enterprise’s general director;

2. The transformation plan;

3. The report on the enterprise’s pre-transformation operation situation;

4. The draft Charter of the joint-stock company;

5. The Resolution of the Managing Board or the investor(s) ratifying the transformation plan.

Article 21.- Contents of transformation plans and reports on the operation situation of enterprises

1. The enterprise’s transformation plan shall include the following contents:

a/ Objectives and requirements of the transformation;

b/ The planned scale and form of transformation: the charter capital, the quantity of shares, the value of a share, percentages of shares held by founding shareholders, percentages of shares held by other shareholders;

c/ The time of transformation, the time of issuance and the venue of sale of shares (if any);

d/ The labor employment plan and the preferential treatment regime (if any) applicable to laborers working at the enterprise when buying the enterprise’s shares (discounts, deferred payment, deductions into wages, bonuses…);

e/ The plan on issuance of share certificates on the domestic and overseas securities markets, stating quantities, control and management mechanisms;

f/ The result of the enterprise’s valuation.

2. The report on the enterprise’s operation situation shall contain the following contents:

a/ The project execution situation regarding the investment capital, legal capital and production and business situation over the past years;

b/ The situation of liabilities, assets, supplies, inventory, an analysis of causes and proposed remedies;

c/ The labor situation;

d/ Inventory of assets, supplies, capital and liabilities of the enterprise;

e/ The audited financial statements of the last three years immediately preceding the time of application for transformation;

3. The draft charter of a joint-stock company shall have the following principal contents:

a/ The names and addresses of the head office, branches and representative offices (if any);

b/ The business objectives and lines;

c/ Charter capital;

d/ The full names, nationalities and addresses of all founding shareholders;

e/ The quantity of shares which the founding shareholders have pledged to buy, types and par value of shares and the total quantity of shares of each type entitled for sale offer;

f/ Rights and obligations of shareholders;

g/ The organizational and managerial structure;

h/ The representative at law;

i/ Modes of adopting decisions of the joint-stock company, principles for settling internal disputes;

j/ Cases where shareholders may request the joint-stock company to re-purchase shares;

k/ Various funds and the limit for each fund established at the joint-stock company; the principles for profit distribution, payment of dividends as well as sharing of business losses;

l/ Cases of dissolution, order of dissolution and procedures for liquidation of the company’s assets;

m/ Modes of amending and supplementing the joint-stock company’s Charter;

n/ The signature of the representative at law or signatures of all founding shareholders;

Other contents of the joint-stock companies’ Charters shall be agreed upon by shareholders but must not be contrary to the law provisions.

Article 22.- Competence to decide on transformation

1. Basing itself on the provisions of this Decree, the Ministry of Planning and Investment shall guide enterprises to compile and submit the dossiers of application for transformation.

Within thirty days after receiving the valid dossiers, the Ministry of Planning and Investment shall assume the prime responsibility for collecting the opinions of the concerned ministries and branches and submitting them to the Prime Minister for consideration and approval.

2. After they are approved by the Prime Minister, the Ministry of Planning and Investment shall notify the enterprises thereof so that they can perform the work specified in Article 23 of this Decree and report the results thereof to the Ministry of Planning and Investment for granting the adjusted investment licenses approving the enterprise transformation. The adjusted investment licenses shall be as valid as the business registration certificates.

Article 23.- Transformation

After the Ministry of Planning and Investment notifies that their transformation plans have been approved, the enterprises shall perform the following work:

1. Widely notifying their transformation on the mass media and to their creditors.

2. Organizing the sale of shares or issuance of share certificates.

3. Convening the first shareholders’ general assembly to adopt the Charter and elect the Managing Board of the joint-stock company.

4. Electing the general director or director by the Managing Board.

5. Organizing the hand-over of capital, assets, labor, liabilities… between the Managing Board or the enterprise investor(s) and the Managing Board of the joint-stock company

Article 24.- Publicization of operation in the form of joint-stock company

1. Within thirty days after being granted the adjusted investment licenses regarding the enterprise transformation, the joint-stock companies must publish on local newspapers or central dailies for three consecutive issues the following principal contents:

a/ The enterprise’s name;

b/ The serial number and date of the adjusted investment license;

c/ The addresses of the head office of the enterprise, its branch(es) and representative office(s) (if any);

d/ The business objectives and line(s);

e/ Charter capital;

f/ Full names and addresses of founding shareholders;

g/ The full name and permanent address of the joint-stock company’s representative at law.

2. When changing the above-said contents, the joint-stock companies must publicize such changes according to the provisions in Clause 1 of this Article.

Article 25.- Responsibilities of State management agencies

The State management agencies shall perform the function of management over the transformation of enterprises and the operation of joint-stock companies in accordance with their respective jurisdiction and the law provisions.

Once every six months, the Ministry of Planning and Investment shall report to the Government and, as authorized by the Government, report to the National Assembly Standing Committee the situation of transformation of foreign-invested enterprises into joint-stock companies.