✦ 스마트 요약
Decree No. 01/2010/ND-CP stipulates the issuance of individual shares by joint-stock companies in Vietnam and administrative penalties for related violations, applicable to joint-stock companies and enterprises transitioning to joint-stock companies. Notably, it strictly manages the share issuance process, requires complete documentation, and adherence to legal conditions and regulations.
적용 범위
Joint-stock companies and enterprises transitioning to joint-stock companies (except those with 100% state capital) may issue individual shares.
핵심 사항
- Joint-stock companies and enterprises transitioning to joint-stock companies may conduct the issuance of individual shares, with each share having a par value of 10,000 Vietnamese dong.
- The issuer must comply with conditions such as having a decision approving the issuance plan, complete and valid registration documents, and maintaining at least six months between issuance rounds.
- State agencies authorized to manage the issuance of individual shares include the State Bank of Vietnam, Ministry of Finance, Securities Commission, Department of Planning and Investment, Industrial Park Management Board, Export Processing Zone Management Board, High-Tech Park Management Board, and Economic Zone Management Board.
- Violations concerning issuance documentation and conditions may result in fines ranging from 30,000,000 to 100,000,000 Vietnamese dong and the application of remedial measures.
- After the issuance round concludes, the issuer must report the results to the competent state agency and publish information on their website.
🌐 이 문서의 사회적 영향
- Positive impacts include facilitating conditions for enterprises to increase capital through the issuance of individual shares.
- Negative impacts include strict compliance with legal regulations, which may impose burdensome administrative procedures and costs on enterprises.
❓ 자주 묻는 질문
Which joint-stock companies can issue individual shares?
Joint-stock companies subject to the provisions of Article 2 of this Decree, excluding state-owned enterprises transitioning to joint-stock companies with 100% state capital.
What is the par value of individual shares being issued?
The par value of individual shares being issued is 10,000 Vietnamese dong.
Which agencies manage the issuance of individual shares?
Competent state agencies include the State Bank of Vietnam, Ministry of Finance, Securities Commission, Department of Planning and Investment, Industrial Park Management Board, Export Processing Zone Management Board, High-Tech Park Management Board, and Economic Zone Management Board.
What fines can be imposed for violations concerning issuance documentation?
A fine of 30,000,000 to 40,000,000 Vietnamese dong for creating false or inaccurate issuance documentation; a fine of 50,000,000 to 70,000,000 Vietnamese dong if there is forgery in the issuance documentation.
What conditions must issuers comply with when issuing shares?
Joint-stock companies must have a decision approving the issuance plan and the use of funds raised from the issuance; they cannot advertise the issuance on mass media before 90 days.
전문
DECREE
On the sale of individual shares
THE GOVERNMENT
Pursuant to the Law on Organization of the Government dated December 25, 2001;
Pursuant to the Enterprise Law dated November 29, 2005;
Based on the Investment Law dated November 29, 2005;
Pursuant to the Securities Law dated June 29, 2006;
Considering the proposal of the Minister of Finance,
DECREE:
PART I
GENERAL PROVISIONS
Article 1. Scope of application
This Decree stipulates the activities of selling individual shares and administrative penalties for violations in the activity of selling individual shares of joint-stock companies established and operating on the territory of the Socialist Republic of Vietnam. (hereinafter referred to collectively as the issuing organization).
Joint-stock companies established and operating under foreign laws shall not sell shares on the territory of the Socialist Republic of Vietnam, except where international treaties to which Vietnam is a party provide otherwise.
Article 2. Applicability
1. Joint-stock companies
2. Enterprises transitioning to joint-stock companies, excluding state-owned enterprises transitioning to joint-stock companies with 100% state capital.
Article 3. Application of Law
The activity of selling individual shares of enterprises operating in conditional industries must comply with the provisions of this Decree and other relevant specialized laws.
Article 4. Explanation of terms
In this Decree, the following terms shall be understood as follows:
1. Selling individual shares is the act of selling shares or rights to purchase shares directly and without using mass media to one of the following entities:
a) Professional securities investors;
b) Less than 100 non-professional securities investors.
2. Public company is a joint-stock company meeting the conditions prescribed in Article 25 and Article 26 of the Securities Law.
Article 5. Par value of shares
1. Shares sold individually on the territory of the Socialist Republic of Vietnam shall be denominated in Vietnamese dong.
2. The par value of shares sold individually is 10,000 (ten thousand) Vietnamese dong.
Chapter II
TASKS AND POWERS OF THE STATE ADMINISTRATIVE AUTHORITIES WITH JURISDICTION OVER THE SALE OF INDIVIDUAL SHARES
Article 6. State administrative authorities with jurisdiction over the sale of individual shares
State administrative authorities with jurisdiction over the sale of individual shares (hereinafter referred to collectively as the competent state authority) include:
1. The State Bank of Vietnam: in cases where the issuing organization selling individual shares is a credit institution;
2. The Ministry of Finance: in cases where the issuing organization is a shareholding insurance enterprise;
3. The Securities Commission: in cases where the issuing organization is a shareholding securities company, a shareholding fund management company, or a public company (excluding public companies operating in the credit and insurance sectors);
4. Departments of Planning and Investment, Industrial Park Management Boards, Export Processing Zone Management Boards, High-Tech Zone Management Boards, and Economic Zone Management Boards: in cases where the issuing organization is a shareholding company not falling within the scope defined in Clauses 1, 2, and 3 of this Article.
Article 7. Tasks and powers of the competent state authority
1. Accepting registration applications for the sale of individual shares in accordance with this Decree and related laws.
In cases where the application is incomplete or invalid, the competent state authority must issue a written opinion requesting the issuing organization to supplement or amend the application within ten days from the date of receipt of the application for the sale of individual shares.
2. Within fifteen days from the date of receiving a complete and valid application, the competent state authority shall notify the registering organization and publish on its website the list of organizations registered for the sale of individual shares within its jurisdiction according to the form prescribed in Appendix V attached to this Decree.
In cases where the issuing organization operates in conditional industries, if related laws provide otherwise, the procedures and formalities for accepting and processing applications shall be carried out in accordance with the relevant laws.
The procedures and formalities for accepting and processing applications for the sale of individual shares must be publicly posted at the competent authority.
3. By the fifth day of each month, the competent state authority is responsible for sending to the Ministry of Finance (Securities Commission) a list in writing and electronically of organizations that have registered for the sale of individual shares in the previous month with complete and valid applications according to the form prescribed in Appendix IV attached to this Decree.
4. By the twenty-fifth day of each month, the Ministry of Finance (Securities Commission) is responsible for compiling and publishing the list of organizations selling individual shares of all types in the previous month according to the form prescribed in Appendix V attached to this Decree.
5. Supervising the activity of selling individual shares and handling, within their jurisdiction, violations of the provisions on the sale of individual shares set forth in this Decree.
Chapter III
SELLING INDIVIDUAL SHARES
Article 8. Conditions for Offering Individual Shares
1. It is a business entity falling within the scope defined in Article 2 of this Decree.
2. It has a decision approving the plan for offering individual shares and the plan for using the proceeds from the offering session, adopted by the Shareholders' General Meeting or the Board of Directors according to the Company's Articles of Association or authorized by the Shareholders' General Meeting to the Board of Directors (for joint-stock companies); or the Board of Members, company owner (for limited liability companies converted into joint-stock companies); or the foreign business owner, the Board of Directors of a joint venture business (for businesses with foreign investment capital converted into joint-stock companies).
The offering plan must clearly define the target and quantity of investors being offered under 100 investors and limit the transfer of shares for a minimum period of one year from the completion date of the offering session.
In cases of offering to strategic partners, the offering organization must establish criteria for identifying and selecting strategic partners. Strategic partners are organizations and individuals both domestically and internationally with financial capacity, business management capabilities; technology transfer, supply of raw materials, market development for products; long-term interest alignment with the business.
Persons with interests related to the individual offering session shall not participate in voting on the Resolution of the Shareholders' General Meeting regarding this matter.
3. It has a complete and valid registration file for offering individual shares in accordance with the provisions of Article 9 of this Decree, submitted to the competent state agency at least 20 days before the planned implementation date of the offering, except where otherwise provided by specialized laws.
4. In cases where the offering organization is a business operating in a regulated industry or profession, in addition to meeting the requirements stipulated in Clauses 1, 2, and 3 of this Article, it must also meet the conditions prescribed by relevant specialized laws.
5. Individual offering sessions must be separated by at least six months.
6. Ensure compliance with regulations on the ratio of capital contribution and investment forms, in cases involving participation of foreign investors.
Article 9. Registration File for Offering Individual Shares
The registration file for offering individual shares includes:
1. An individual share offering report in the format prescribed in Appendix I attached to this Decree.
2. A decision of the Shareholders' General Meeting or the Board of Directors (for joint-stock companies); or the Board of Members (for limited liability companies converted into joint-stock companies); or the foreign business owner, the Board of Directors of a joint venture business (for businesses with foreign investment capital converted into joint-stock companies) approving the offering plan and the plan for using the proceeds from the offering session. The offering plan and the plan for using the proceeds from the offering session contain main contents as prescribed in Appendix I issued together with this Decree.
3. A resolution of the Shareholders' General Meeting or the Board of Directors according to the Company's Articles of Association or authorized by the Shareholders' General Meeting approving the criteria for strategic partners, employees, in cases of offering to strategic partners, employees within the company.
4. A decision of the Board of Directors approving the list of strategic partners, employees, in cases of offering to strategic partners, employees within the company.
5. Documents providing information about the offering session to investors as stipulated in Clause 3 of Article 10 of this Decree.
6. Documents proving compliance with the participation ratio of foreign investors and adherence to regulations on investment forms, in cases of offering to foreign investors.
7. Other documents as required by relevant laws.
Chapter IV
OBLIGATIONS OF THE ORGANIZATION OFFERING INDIVIDUAL SHARES
Article 10. Obligations of the Issuer when conducting a private placement of shares
1. Within ninety days prior to and during the conduct of a private placement of shares, the issuer shall not advertise the issuance on mass media channels, except for information disclosure in accordance with securities laws and related legal documents. Information disclosure shall not contain promotional or solicitation content regarding the private placement of shares.
2. Submit to the competent state agency the registration dossier for the private placement of shares in accordance with Articles 8 and 9 of this Decree; amend and supplement the dossier according to the requirements of the competent state agency before implementing the private placement. In case the issuer does not receive the opinion of the competent state agency within fifteen days after the deadline stipulated in Clause 2, Article 7 of this Decree, the issuer may proceed with the private placement of shares based on the registered dossier.
3. Provide information about the issuance period to investors in accordance with Appendix II issued together with this Decree.
4. Implement the issuance in accordance with the plan registered with the competent state agency.
5. Securities purchase funds must be transferred into a frozen account opened at a commercial bank until the issuance period is completed.
6. In the case of a public company, in addition to complying with the provisions of Clauses 1, 2, 3, 4, and 5 of this Article, it must comply with the provisions of the Securities Law.
Article 11. Obligations of the Issuer after a Private Placement of Shares
1. Within ten days from the end of the issuance period, the issuer has the obligation to submit the Report on the Results of the Issuance Period and the Shareholder List (in the form prescribed in Appendix III issued together with this Decree) to the competent state agency while simultaneously announcing the results of the issuance on the issuer's website (if available).
2. Utilize the capital obtained from the issuance period in accordance with the approved plan as stipulated in Clause 2, Article 8 of this Decree. In case the purpose of using the capital changes, the issuer must disclose information about the reason for the change and the Decision of the Shareholders' Meeting or the Board of Directors (if authorized by the Shareholders' Meeting) regarding the change.
3. Submit financial reports to the competent state agency and make them public in accordance with accounting laws.
4. When disclosing information, the issuer must report to the competent state agency on the content of the disclosed information. Disclosure of information must be carried out by the legal representative of the enterprise or the person authorized to disclose information. The legal representative of the enterprise must bear responsibility for the content of the information disclosed by the person authorized to disclose information.
5. In addition to the obligation to disclose information as prescribed in this Decree, the issuer has the obligation to report and disclose information in accordance with other relevant laws.
6. After a private placement of shares that leads to becoming a public company, the issuer has the obligation to register as a public company in accordance with the Securities Law.
7. If the issuer becomes a public company due to the transfer of shares between shareholders, creating more than 100 shareholders as stipulated in Article 25 of the Securities Law within seven days after completing the share transfer certification process, the issuer has the obligation:
a) To notify all shareholders in writing about becoming a public company and the plan to register as a public company;
b) To submit to the competent state agency the plan to register as a public company and the shareholder list at the most recent time;
c) To complete the registration procedures as a public company within ninety days in accordance with Articles 25 and 26 of the Securities Law.
Article 12. Restrictions on the Certification of Transfer of Shares Offered Individually
1. The organization offering shares may not certify the transfer of shares during the restricted transfer period according to the registered offering plan with the competent state agency.
2. In cases where the organization offering shares becomes a public company due to individual offerings, during the registration period for becoming a public company, the organization offering shares may not certify the transfer of shares.
Chapter V
HANDLING VIOLATIONS
Section 1
PRINCIPLES FOR HANDLING VIOLATIONS, FORMS OF ADMINISTRATIVE PENALTIES AND AUTHORITY TO IMPOSE PENALTIES
Article 13. Principles for Handling Violations
1. Organizations and individuals who violate the provisions of this Decree and other relevant laws concerning individual share offerings shall be subject to disciplinary action, administrative penalties, or criminal prosecution depending on the nature and severity of the violation; if damage is caused, compensation must be provided in accordance with the law.
2. Administrative penalties for individual share offerings shall be implemented in accordance with the provisions of this Decree and the law on handling administrative violations.
Article 14. Forms of Administrative Penalties and Measures to Mitigate Consequences
1. Organizations and individuals who violate the provisions of this Decree shall bear one of the following main forms of administrative penalty:
a) To issue warnings;
b) Fine;
2. Depending on the nature and severity of the violation, organizations and individuals who violate may also be subject to one or more supplementary forms of administrative penalty as follows:
a) Suspension of activities related to individual share offerings for a specified period;
b) Confiscation of all unlawful proceeds obtained from the implementation of the violation.
3. In addition to the forms of administrative penalty stipulated in Clause 1 and Clause 2 of this Article, organizations and individuals who violate may also be subject to one or more measures to mitigate consequences as follows:
a) Compel compliance with the relevant legal provisions regarding administrative violations;
b) Compel the cancellation or correction of false or misleading information;
c) In cases where investors request it, compel the recovery of the number of shares offered, refunding of the deposit or purchase price plus interest on demand deposits within thirty days from the date of cancellation of the individual share offering round.
Article 15. Statute of Limitations for Administrative Penalties
The statute of limitations for administrative penalties in individual share offerings is two years, calculated from the date the administrative violation was committed.
Article 16. Authority to Impose Administrative Penalties
The competent state agencies as stipulated in Article 6 of this Decree are responsible for imposing administrative penalties on violations of the law concerning individual share offerings.
Article 17. Procedures for Imposing Administrative Penalties
The procedures for imposing administrative penalties on individual share offerings shall be carried out in accordance with the Ordinance on Handling Administrative Violations and other relevant legal documents.
Section 2
ADMINISTRATIVE VIOLATIONS, FORMS OF PENALTIES AND AMOUNTS OF PENALTIES
Article 18. Violations of Provisions on Documents, Conditions and Organization of Share Offerings
1. A fine of between 30,000,000 VND and 40,000,000 VND shall be imposed on the organization offering shares and organizations or individuals involved in preparing and certifying the offering documents that have committed one of the following violations:
a) Preparing offering documents containing misleading or inaccurate information, causing confusion for investors, or lacking complete information as required by law;
b) Submitting offering documents late or failing to supplement or amend the offering documents for the competent state agency as stipulated in Clause 2 of Article 10 of this Decree.
2. A fine of between 40,000,000 VND and 50,000,000 VND shall be imposed on the organization offering shares that conducts individual share offerings without registering with the competent state agency as required by law.
3. A fine of between 50,000,000 VND and 70,000,000 VND shall be imposed on the organization offering shares and organizations or individuals involved in preparing and certifying the offering documents and organizing the offering that have committed one of the following violations:
a) Falsifying offering documents, causing damage to investors;
b) Conducting offerings without meeting the conditions stipulated in Article 8 of this Decree;
c) Conducting offerings contrary to the content of the offering plan submitted to the competent state agency;
d) Using funds raised from the offering round contrary to the registered plan as stipulated in Clause 2 of Article 8 of this Decree, except in cases where there has been a change in the purpose of using the funds as stipulated in Clause 2 of Article 11 of this Decree.
4. A fine of between 70,000,000 VND and 100,000,000 VND shall be imposed on the organization offering shares that uses fraudulent means to conduct offerings contrary to the law.
5. Additional forms of punishment:
a) Suspend the offering round for thirty days for violations stipulated in Clause 3 of this Article; during the suspension period, the organization offering shares must rectify the violation;
b) Compel the cancellation of the offering round if the organization offering shares fails to rectify the violation within the suspension period stipulated in point a of this clause.
6. Measures to rectify consequences shall be applied:
a) Compel compliance with the relevant legal provisions on individual share offerings;
b) Compel the recovery of the number of shares offered, refunding the deposit or purchase price plus interest on demand deposits to investors, if investors request cancellation of the purchase within thirty days from the date of suspension of the offering round as stipulated in point a of Clause 5 of this Article.
Article 19. Violation of reporting and information disclosure provisions
1. A warning or a fine from VND 10,000,000 to VND 20,000,000 shall be imposed on the issuing organization that fails to report or disclose information, or reports or discloses incomplete, untimely, or overdue information as prescribed in Clause 3, Article 10 or Article 11 of this Decree.
2. A fine from VND 20,000,000 to VND 30,000,000 shall be imposed on the issuing organization that discloses information containing false or inaccurate contents.
3. A fine from VND 40,000,000 to VND 50,000,000 shall be imposed on the issuing organization that advertises the issuance period through mass media.
4. Apply remedial measures:
a) Order compliance with legal provisions on reporting and information disclosure for violations stipulated in Clause 1 and Clause 2 of this Article.
b) Order the cancellation or correction of false or inaccurate information for violations stipulated in Clause 2 of this Article.
Article 20. Violation of provisions on certification of transfer of privately issued shares
1. A fine from VND 10,000,000 to VND 30,000,000 shall be imposed on the issuing organization and related parties that certify the transfer of shares during the restricted transfer period as prescribed in Article 12 of this Decree.
2. Measures to address consequences:
Order compliance with legal provisions on the restricted transfer period of shares.
Chapter VI
IMPLEMENTING PROVISIONS
Article 21. Effective Date
This Decree takes effect from February 25, 2010.
Article 22. Implementation organization
1. The Minister of Finance shall be responsible for guiding the implementation of this Decree.
2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central city administrations, and related organizations and individuals shall be responsible for implementing this Decree./.
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01/2010/NĐ-CP
Decree No. 01/2010/ND-CP on the Issuance of Individual Shares
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