Enterprises must carry out procedures for TRANSFER CAPITAL OR SHARES TO FOREIGN INVESTORS and send it to the licensing agency.
For foreign investors who want to buy back contributed capital/shares or transfer capital in the Company in Vietnam, they must register a written approval of capital contribution/repurchase of contributed capital in accordance with the Law on Investment. .
Thus, before carrying out the procedures for changing business registration contents on capital transfer to foreigners. The enterprise must carry out the procedures for registration of capital contribution/repurchase of contributed capital and send it to the licensing agency. After receiving a valid approval notice, the Investor shall carry out the remaining procedures as guided in the Law on Enterprises.
Legal basis:
The Investment Law 2014 provides for the Law on Investment;
The Enterprise Law 2014 provides for the Enterprise Law;
Decree 118/2015/ND-CP on regulations and guidance on investment registration procedures;
Decree 78/2015/ND-CP regulating and guiding the procedures for enterprise registration;
Decree 78/2015/ND-CP amending and guiding the procedures for enterprise registration;
Circular 02/2019/TT-BKHDT guiding business registration procedures.
Conditions and forms of capital transfer to foreign investors
Conditions for capital contribution, share purchase and capital contribution:
Provisions in Clause 1, Article 25 of the Law on Investment 2014
Article 25. Forms and conditions for capital contribution, share purchase and capital contribution to economic organizations
Foreign investors may contribute capital to economic organizations in the following forms:
a) Buy shares issued for the first time or additionally issued shares;
b) Contributing capital to limited liability companies or partnerships;
c) Contributing capital to other economic organizations other than those specified at Points a and b of this Clause.
Forms of capital contribution, share purchase, capital contribution:
Provisions in Clause 2, Article 25 of the Law on Investment 2014
Foreign investors purchase shares or capital contributions of economic organizations in the following forms:
a) Purchase shares of a joint-stock company from the company or shareholder;
b) Purchase of capital contributions from members of the limited company;
c) Purchase of capital contributions of capital contributors in a partnership;
d) Purchase of capital contributions from members of other economic organizations other than those specified at Points a, b and c of this Clause.
Procedures for Transfer of Capital to Foreign Investors
Before the enterprise carries out procedures for changing members/shareholders through capital transfer, it must register a capital contribution document as prescribed in this Article. After being approved by the competent authority, the enterprise shall transfer capital in accordance with the provisions of the Law on Enterprises.
STEP 1: In Clause 3, Article 46 of Decree 118/2015/ND-CP stipulates as follows:
Article 46. Investment procedures in the form of capital contribution, purchase of shares or contributed capital by foreign investors
Foreign investors investing in the form of capital contribution, purchase of shares or contributed capital of an economic organization in the cases specified at Points a and b, Clause 2 of this Article shall follow the following procedures:
a) The investor shall submit 01 application for registration of capital contribution, purchase of shares or capital contribution as prescribed in Clause 2, Article 26 of the Law on Investment to the Department of Planning and Investment where the economic organization's head office is located;
b) Within 15 days from the day on which the valid application is received as prescribed in Point a of this Clause, the Department of Planning and Investment shall consider the foreign investor's satisfaction of investment conditions and notify the foreign investor. for investors;
c) After receiving the notice as prescribed in Point b of this Clause, economic organizations with foreign investors contributing capital, buying shares or contributed capital shall carry out procedures for changing members or shareholders at the Agency. business registration agency in accordance with the law on enterprises and other laws corresponding to each type of economic organization.
DOCUMENTATION REQUIRED:
Clause 2, Article 26 of Law on Investment 2014
Dossier for registration of capital contribution, share purchase or capital contribution:
a) A written registration for capital contribution, share purchase or capital contribution, including the following contents: information about the economic organization to which the foreign investor intends to contribute capital, purchase shares or capital contribution; rate of ownership of charter capital of foreign investors after capital contribution, purchase of shares or capital contribution to economic organizations;
b) A copy of the identity card, identity card or passport for the investor being an individual; copy of Certificate of Establishment or other equivalent document certifying legal status for investor being an organization.
After obtaining written approval from the licensing authority. Enterprises carry out other procedures prescribed in the Law on Enterprise 2014.
Advising on capital/share transfer procedures for members being foreign investors. Investment advice on capital contribution, capital transfer tax rate
STEP 2: On a case-by-case basis, Investors contribute capital to various types of enterprises and carry out the prescribed procedures.
Case 1: Changing shareholders, receiving more shareholders in a Joint Stock Company:
Article 52 Decree 78/2015/ND-CP
Notice of change of shareholders being foreign investors in unlisted joint stock companies
1. In case an unlisted joint-stock company changes its shareholder being a foreign investor as prescribed in Clause 3, Article 32 of the Law on Enterprises, the company shall send a Notice to the Business Registration Office where the company has registered. . Contents of the Notice include:
a) Name, enterprise identification number, tax identification number or business registration certificate number (if the enterprise does not have an enterprise identification number or tax identification number);
b) Information of shareholders being foreign investors transferring shares: Name and head office address of foreign shareholders being organizations; full name, nationality, permanent address of the shareholder being an individual; types of shares and their existing share ownership percentage in the company; number of shares and types of shares to be transferred;
c) Information of the shareholder being a foreign investor receiving the transfer of shares: Name, address of the head office of the foreign shareholder being an organization; full name, nationality, permanent address of the shareholder being an individual; number of shares and type of shares to be transferred; the number of shares, types of shares and their respective percentage of share ownership in the company;
d) Full name, number of people's identity card or passport or other lawful personal identification as prescribed in Article 10 of this Decree and signature of the legal representative of the company.
TRANSFER OF CAPITAL OR SHARES TO FOREIGN INVESTORS Attached:
The notice must contain the decision and a valid copy of the minutes of the meeting of the General Meeting of Shareholders on the change of shareholders being foreign investors; the list of shareholders who are foreign investors when changed; share transfer contract or documents proving the completion of the transfer; a valid copy of the establishment decision or other equivalent document.
A valid copy of one of the personal identification papers specified in Article 10 of this Decree of the authorized representative and the corresponding authorization decision for the foreign shareholder receiving the transfer being an organization or a copy valid ID card or passport or other lawful personal identification as prescribed in Article 10 of this Decree of the foreign shareholder receiving the transfer being an individual; document of the Department of Planning and Investment approving the capital contribution, share purchase, capital contribution portion of foreign investors in accordance with the Law on Investment.
The decision and minutes of the meeting of the General Meeting of Shareholders must clearly state the amended contents in the company's charter.
Case 2: Receive more capital contribution
Article 44. Registration of change of charter capital, change of contributed capital ratio
1. In case the company registers to change the capital contribution ratio of members of a limited liability company with two or more members, of general partners of a partnership, the company shall send a Notice to the Registration Office business where the company is registered. Contents of the Notice include:
a) Name, enterprise identification number, tax identification number or business registration certificate number (if the enterprise does not have an enterprise identification number or tax identification number);
b) Full name, address, nationality, number of people's identity card, passport or other lawful personal identification as prescribed in Article 10 of this Decree or establishment decision number, enterprise code number of each member; members, for limited liability companies with two or more members, of general partners, for partnerships;
c) Percentage of capital contribution of each member, for limited liability companies with two or more members, or of each general partner, for partnerships;
d) The registered charter capital and the changed charter capital; time and form of capital increase or decrease;
dd) Full name, nationality, number of people's identity card or passport or other lawful personal identification as prescribed in Article 10 of this Decree, permanent address and signature of the legal representative of the company; company or an authorized general partner in the case of a partnership.
Case 3: Receiving more members in the Company Limited
Article 45. Registration of change of members of a limited liability company with two or more members
1. In case of accepting new members, the company sends a Notice to the Business Registration Office where the company has registered. Contents of the Notice include:
a) Name, enterprise identification number, tax identification number or business registration certificate number (if the enterprise does not have an enterprise identification number or tax identification number);
b) Name, enterprise identification number, and head office address, for members being organizations; full name, nationality, number of people's identity card or passport or other lawful personal identification as prescribed in Article 10 of this Decree, for members being individuals; value of contributed capital and capital contribution, time of capital contribution, types of assets contributed as capital, quantity and value of each type of assets contributed as capital by new members;
c) The changed capital contribution of members after receiving new members;
d) Charter capital of the company after receiving new members;
d) Full name and signature of the legal representative of the company.
The Notice must be accompanied by:
➦ The decision and valid copy of the meeting minutes of the Members' Council on the admission of new members;
➦ Certificate of capital contribution of new members of the company.
➦ A valid copy of the establishment decision or the certificate of enterprise registration or another equivalent document, a valid copy of one of the personal identification papers specified in Article 10 of this Decree of the authorized representative. authorization and the corresponding authorization decision for an organization member or a valid copy of one of the personal identification papers specified in Article 10 of this Decree of the member being an individual.
➦ A document of the Department of Planning and Investment approving the capital contribution, share purchase, and capital contribution portion of the foreign investor in the case specified in Clause 1, Article 26 of the Law on Investment.
➦ Decisions and meeting minutes of the Members' Council must clearly state the amended contents in the company's charter.
Case 4: Change of member due to transfer
Clause 2 Article 45 Decree 78/2015
In case of member change due to TRANSFER OF CAPITAL OR SHARES TO FOREIGN INVESTORS, the company sends a Notice to the Business Registration Office where the company has registered.
Contents of the Notice include:
a) Name, enterprise identification number, tax identification number or business registration certificate number (if the enterprise does not have an enterprise identification number or tax identification number).
b) Name and head office address, for organizations, or full name, nationality, number of the people's identity card or passport or other lawful personal identification as prescribed in Article 10 of this Decree, for individuals; capital contribution of the transferor and the transferee.
c) The capital contribution of members after the transfer.
d) Time of transfer.
d) Full name and signature of the legal representative of the company.
The Notice must be accompanied by:
➦ The transfer contract or documents proving the completion of the transfer;
➦ A valid copy of the establishment decision or the certificate of enterprise registration or another equivalent document, a valid copy of one of the personal identification papers specified in Article 10 of this Decree of the authorized representative. authorization and corresponding authorization decision for the new member being an organization or a valid copy of one of the personal identification papers specified in Article 10 of this Decree of the new member being an individual;
➦ A document of the Department of Planning and Investment approving the capital contribution, share purchase, and capital contribution portion of the foreign investor in the case specified in Clause 1, Article 26 of the Law on Investment.
Case 5: Change of Owner of Single Member Company
Article 46. Registration of change of owner of a one-member limited liability company
1. In case the company owner transfers the entire charter capital to an individual or an organization, the transferee must register the change of the company owner. Dossier for registration of changes includes:
a) Notice of change of business registration information signed by the owner or the legal representative of the old owner and the new owner or the legal representative of the new owner;
b) A valid copy of one of the personal identification papers specified in Article 10 of this Decree of the transferee in case the transferee is an individual or a valid copy of the enterprise registration certificate. or other equivalent documents in case the transferee is an organization. A list of authorized representatives, a valid copy of one of the personal identification papers specified in Article 10 of this Decree of the authorized representative, and a written authorization of the owner for the authorized representative. permission.
c) A valid copy of the amended and supplemented charter of the company.
d) Capital transfer contract or documents proving completion of capital transfer;
dd) A written approval from the Department of Planning and Investment on the capital contribution, share purchase, and capital contribution portion of the foreign investor in the case specified in Clause 1, Article 26 of the Law on Investment.
For a free consultation on the procedure of TRANSFER OF CAPITAL OR SHARES TO FOREIGN INVESTORS, please contact ABA VISA via Hotline 0938165817
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