Contributing capital via software is a new method for Vietnamese enterprises. When using this method, enterprises need to take into account matters such as those concerning the objects and subjects of capital contribution and procedures to contribute capital to avoid fines.
According to law, a software or computer programme is a genre of work entitled to copyright protection, and may be used as an asset to contribute capital to a business or as a means of payment for shares purchased by enterprises.
Subjects of capital contribution
Organisations and individuals may use software or computer programmes to contribute capital to an enterprise from the preparatory stage for establishment or during its operational process, if they satisfy the following conditions:
(i) Organisations and individuals are not prohibited by law from contributing capital;
(ii) Only individuals or organisations, being the copyright owners of the software or computer programme, have the right to use those as assets for capital contribution. The copyright owner of the software or computer programme may be the direct author; co-authors; organisations or individuals assigning or entering into contracts with the author; and an assignee of the copyright; or an heir. The identity of the copyright owners may be approved via a certificate of copyright registration or not.
Valuation of assets contributed as capital
As prescribed by law, the assets contributed as capital during the establishment of an enterprise, which are neither in Viet Nam nor freely convertible foreign currency or gold, must be valuated by the enterprise’s members or founding shareholders as per the principle of consensus or by a professional valuation organisation. If the assets contributed as capital are valued to be higher than their actual value at the time of contribution, the members or founding shareholders will jointly be liable for the debts and other asset obligations of the enterprise, equivalent to the difference between the valuated and actual value of the contributed assets at the end of valuation.
The assets contributed as capital during the operation process will be valued based on the agreement between the enterprise and capital contributor, or valued by a professional valuation organisation. In case a professional valuation organisation carries out the valuation, the value of the assets contributed as capital must be approved by the capital contributor and the enterprise. If the contributed assets are valued to be higher than their actual value at the time of contribution, the capital contributor or the valuation organisation and the enterprise’s legal representative will jointly be liable for the debts and other asset obligations of the enterprise, equivalent to the difference between the valuated and actual value of the contributed assets at the end of valuation.
Enterprises that deliberately valuate assets contributed as capital incorrectly from their actual value shall be fined VNĐ25 million to VNĐ30 million.
Procedures for capital contribution
According to the regulations of the Law on Enterprise, organisations and individuals, when contributing capital to an enterprise via software, must also transfer the ownership of assets to such enterprise. Specifically, in the event where the software has been certified for protection registration, the capital contributor must implement procedures to transfer the ownership of such assets to the enterprise at competent authorities. In cases involving software with non-registered copyright, the capital contribution must be made by the delivery and receipt of contributed assets endorsed by a written record. The record of such delivery and receipt must have the following: information about the two parties; type and number of units of assets contributed as capital; the total value of contributed assets; and the percentage of the total value of such assets in the charter capital of the enterprise; as well as the date of delivery and receipt, and signatures of the two parties.
The capital contributor must contribute capital or pay for the shares registered for purchase fully and punctually with the type of assets as committed. When the full contribution of capital is made or when the number of shares registered for purchase is sufficiently paid for, enterprises must issue a certificate for contributed capital or shares or write the capital contributor’s name in the registration book of shareholders. Enterprises that fail to issue certificates for contributed capital or fail to properly make a registration book of shareholders as prescribed by law will be fined VNĐ10 million to VNĐ15 million, and will be required to issue a certificate of contributed capital for members or make a registration book of shareholders in accordance with the law.
Furthermore, it is important to know that even after receiving the transferred ownership of software or computer programme, the enterprises are only the owners of asset rights (the rights to reproduce, distribute, or lease) and the right to publish or permit others to publish the software or computer programme. However, the enterprises are not entitled to name or be the real owners of the software or computer programme. PLF – LAW FIRM