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THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 126/2017/ND-CP
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Hanoi, November
16, 2017
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DECREE
ON
CONVERSION FROM STATE-OWNED ENTERPRISES AND SINGLE-MEMBER LIMITED LIABILITY
COMPANIES WITH 100% OF CHARTER CAPITAL INVESTED BY STATE-OWNED ENTERPRISES INTO
JOINT-STOCK COMPANIES
Pursuant to the Law on Government Organization
dated June 19, 2015;
Pursuant to the Law on Enterprises dated
November 26, 2014;
Pursuant to the Law on management and
utilization of state capital invested in the enterprise’s manufacturing and
business activities dated November 26, 2014;
Pursuant to the Law on Securities dated June 29,
2006; Law on Amendments to certain articles of the Law on Securities dated
November 24, 2010;
Pursuant to the Land Law dated November 29,
2013;
At the request of the Minister of Finance;
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Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Decree deals with conversion from state-owned
enterprises and single-member limited liability companies with 100% of charter
capital invested by state-owned enterprises into joint-stock companies.
Article 2. Regulated entities
1. Authorities representing state ownership
(hereinafter referred to as “representative authorities”).
2. State-owned enterprises including:
a) Wholly state-owned single-member limited
liability companies (LLCs) that are parent companies of state-owned economic
groups, parent companies of state corporations (including state-owned
commercial banks) or parent companies in groups of parent companies and
subsidiaries (hereinafter referred to as “parent companies”).
b) Wholly state-owned single-member LLCs.
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3. Single-member LLCs with 100% of charter capital
invested by state-owned enterprises (hereinafter referred to as “level II
enterprises”).
4. Other authorities, organizations and individuals
relevant to conversion from state-owned enterprises into joint-stock companies
(JSCs).
Article 3. Definitions
For the purposes of this Decree, the terms below
shall be construed as follows:
1. “equitized enterprise” is any enterprise
mentioned in Clause 2 and Clause 3 Article 2 herein and converted into the JSC
stated herein.
2. “date of equitization decision” is the day on
which a representative authority makes a decision on enterprise equitization.
3. “date of enterprise valuation” is the date
selected by the representative authority that is suitable for methods to
determine the enterprise value. In case of determining the enterprise value by
the asset-based method, the date of enterprise valuation shall be the date of
closing the accounting record to make the latest quarterly or annual financial
statements after the date of equitization decision.
4. “date of publishing the enterprise value” is the
day on which the representative authority makes a decision on publishing the
equitized enterprise value.
5. “date of equitization” means the day on which
the equitized enterprise obtains the certification of first registration of
JSC.
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7. “auctioneering organization” is any stock
exchange, stock company, service center or enterprise holding property auction
in accordance with regulations of law on property auction and decisions made by
the representative authority.
8. “starting price” means the initial price of a share
sold on the market determined by the representative authority provided that it
is not under the par value (VND 10,000). The starting price shall be determined
by a consulting firm to ensure full determination of the actual value of state
capital in the enterprise that has been recalculated and published by a
competent authority and potential of the enterprise in the future.
9. “equitization expense” is an expense directly
related to the process of enterprise equitization from the date of equitization
decision to the date of equitization.
10. “representative authority” means any ministry,
ministerial or governmental authority; People’s Committee of
province/central-affiliated city (hereinafter referred to as “provincial
People’s Committee”) or an organization established under regulations of law
that is responsible for executing rights and fulfilling responsibilities of a
representative of state ownership in the equitized enterprise.
Article 4. Equitization
requirements
1. The enterprises mentioned in Clause 2 and Clause
3 Article 2 herein may be equitized when all the following requirements are
satisfied:
a) Such enterprises are not on the currently
effective list of wholly state-owned enterprises that is made by the Prime
Minister;
b) State capital is still available after settling
financial issues and revaluation of such enterprises.
2. In case of the enterprises that have financial
issues settled and enterprise value recalculated as stated in Chapter II and
Chapter III herein but the actual enterprise value is lower than payables:
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If the aforesaid plans are not feasible or
efficient, they shall be converted into other conversions in accordance with
regulations of law;
b) The other enterprises shall be converted into
other conversions by representative authorities.
3. The State shall not provide further capital for
equitization, even for enterprises over 50% shares of which have to be held by
the State after under the Prime Minister's regulations.
Article 5. Forms of
equitization
1. Issuing additional shares in order to increase
charter capital while keeping current state capital unchanged.
2. Selling part of current state capital or both
selling part of state capital and issuing additional shares to increase charter
capital.
3. Selling the entire state capital available at
the enterprise or both selling the entire state capital and issuing additional
shares to increase charter capital.
Article 6. Requirements for
purchasing shares
1. Domestic investors shall be entitled to purchase
shares from equitized enterprises with unlimited quantity, unless otherwise
stated in Clause 4 this Article.
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Foreign investors that wish to purchase shares
shall open accounts at credit institutions under regulations of Vietnam law on
foreign exchange.
3. Strategic investors:
a) A strategic investor may be a domestic or
foreign investor that:
- has the status of a legal entity;
- has adequate financial capacity and a profitable
business in the past 2 years before the date of subscribing for shares without
accumulated loss; and
- has a written commitment made by a competent
person when registering to become the strategic investor of the equitized
enterprise that:
+ The primary business line(s) and brand(s) of the
equitized enterprise will be maintained for at least 3 years from the date
officially becoming the strategic investor.
The representative authority of an enterprise
on the list of national brands shall request the Prime Minister to determine
the specific time that the strategic investor have to make the commitment to
continue maintaining the primary business line(s) and brand(s) of the equitized
enterprise.
+ The purchased shares will not be transferred
within 3 years from the day on which the JSC obtains the certification of first
registration of JSC according to the Law on Enterprises.
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+ Compensation shall be paid for damage caused by
any violation against the commitment and in which case the shares purchased by
the strategic investor are at the State’s disposal.
b) The initial offering of shares to strategic investors
is only available to the enterprises on the list of enterprises over 50% of
shares of which has to be held by the State under the Prime Minister’s
decision.
c) According to the amount of charter capital,
nature of business lines and the need for enterprise expansion and development,
a steering committee for enterprise equitization (hereinafter referred to as
"steering committee") shall request the representative authority to
make a decision on initial offering of shares to strategic investors, criteria
for selecting strategic investors and amount of shares offered to strategic
investors.
Procedures for selecting strategic investors in the
equitized enterprise are provided in Appendix I attached hereto to ensure
strategic investors are selected and shares are subscribed before initial
public offering (IPO).
d) If there is only one strategic investor that is
eligible to subscribe for shares and the quantity of subscribed shares is less
than or equal to the shares offered to the strategic investor according to the
approved equitization plan, the steering committee shall request the
representative authority to make the decision on offering shares for the
strategic investor through direct negotiation provided that the selling price
is not less than the average successful bid according to public auction
results; in case shares are offered to other investors as specified in Clause 2
Article 37 herein, the agreed price shall be at least equal to the price agreed
with the investor subscribing for shares.
The steering authority shall request the
representative authority to make a decision on revising the equitization plan
to sell the remaining shares (difference between the number of shares offered
to the strategic investor according to the approved equitization plan and the
number of shares subscribed by the strategic investor) at public auction.
dd) If there are at least two strategic investors
eligible to subscribe for shares and the total number of shares subscribed by
strategic investors is more than the number of shares offered to strategic
investors specified in the approved equitization plan, the steering committee
shall request the representative authority to consider holding an auction for
strategic investors at a stock exchange.
The auction between strategic investors shall be
conducted after the public auction is held with the starting price equal to the
average successful bid of the public auction (except for the case stated in
Clause 2 Article 37 herein, in which the starting price shall be the agreed
price to offer shares for the investor) Shares will be sold to investors in
order of their offered prices from highest to lowest.
e) If there are at least two strategic investors
that are eligible to subscribe for shares and the total number of subscribed
shares is less than or equal to the shares offered to strategic investors
according to the approved equitization plan, the steering committee shall reach
an agreement on the number of offered shares and the selling price of shares
for each strategic investor and request the representative authority for
approval and the number of shares offered to each strategic investor shall be
the quantity of shares subscribed by each strategic investor provided that the
selling price is not less than the average successful bid according to public
auction results (in case shares are offered to other investors specified in
Clause 2 Article 37 herein, the agreed selling price shall be at least equal to
the price agreed with investors subscribing for shares).
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g) The strategic investor that fails to comply with
the commitment or violates against regulations on transfer of shares shall
provide compensation for any damage in accordance with the commitment agreement
and regulations of law.
h) The strategic investor has to pay a deposit or
obtain a guarantee from a credit institution or branch of foreign bank that
equals (=) 20% of value of the shares subscribed at the starting price that a
competent authority decided through the approved equitization plan.
The strategic investor abandoning the right to
purchase shares will lose the deposit (or incur a fine equal to the deposit in
case of guarantee).
i) Offering of shares for the strategic investor
shall be done before the first General meeting of shareholders is held to
convert the enterprise into the JSC.
The steering authority shall request the
representative authority to make a decision on recording unsold shares
(difference between the number of shares offered to strategic investors
according to the approved equitization plan and the number of shares subscribed
by the strategic investor) as a decrease in charter capital before the first
General meeting of shareholders is held.
4. Entities not eligible for purchasing initially
issued shares from the equitized enterprise include:
a) Members of the steering committee and assistance
teams of enterprise equitization (excluding for members that are
representatives of the enterprise);
b) Financial intermediaries and employees or
managers thereof engaging in providing consulting services of equitization or
financial statement audit and the organization that audits the enterprise value
(excluding underwriters that purchase unsold shares as stated in the
underwriting agreements);
c) Subsidiaries and associate companies in the same
corporation and parent companies;
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dd) The related persons mentioned in Points a, b
and d Clause 17 Article 4 of the 2014 Law on Enterprises.
Article 7. Payment currency and
methods of initial offering
1. Domestic and foreign investors shall purchase
shares from the enterprise in VND.
2. The initial offering shall be carried out in the
following methods:
a) Public auction;
b) Underwriting;
c) Direct negotiation;
d) Book building.
The Prime Minister shall decide entities eligible
to apply the booking building mode and the Ministry of Finance shall provide
detailed guidance on the share offering according to such method.
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Article 8. Equitization
expenses
1. The representative authority shall make the
estimate and statement of equitization expenses. The general director or
director of the equitized enterprise shall decide specific expenses in
conformity with the contents approved by the representative authority and take
responsibility for such decision. Equitization expenses shall ensure the
availability of all suitable and valid documentation and cost-effectiveness.
2. Equitization expenses consist of:
a) Direct costs of the enterprise:
- Cost of providing professional training in
enterprise equitization;
- Cost of stocktaking and determination of asset
values;
- Cost of making the equitization plan and
developing the charter;
- Cost of organizing the labor conference to
implement equitization;
- Cost of communications and publishing information
about the enterprise;
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- Cost of share offering;
- Cost of holding the first General meeting of
shareholders.
b) Costs of hiring an auditing or consulting firm
(including the organization providing consulting services to determine
enterprise value, determine the starting price, develop the equitization plan
or offer shares) decided by the representative authority or the steering
committee (if authorized). The payment for the costs of hiring the consulting
firm shall be made according to agreements concluded by relevant parties.
c) Salary for the steering committee and the
assistance team:
- The salary for each member of the steering
committee and the assistance team shall not exceed twice as much as the
statutory pay rate for officials, public employees and arm forces issued by the
Government in each period.
- The time limit for paying salary to each member
of the steering committee or the assistance team shall be 24 months from the
day on which the steering committee or the assistance team is established.
d) Other expenses related to enterprise
equitization.
3. Cost of hiring financial statement audit on the
date of enterprise valuation not considered one of the equitization expenses
and shall be aggregated with business expenses of the enterprise in the current
period.
4. Equitization expenses shall be taken from the
revenue earned from the offering of shares stated in Article 39 herein.
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1. Charter capital shall be divided into equal
parts called shares. The par value of each share shall be VND ten thousand (VND
10,000).
2. A share certificate may be a certificate given
by the JSC, accounting entry or electronic data to certify that one or some
shares is/are under ownership of a company's shareholder. The share certificate
shall specify the primary contents mentioned in Clause 1 Article 120 of the
2014 Law on Enterprises.
Article 10. Rules for
inheritance of rights and obligations of JSCs converted from state-owned
enterprises
1. The equitized enterprise shall arrange and
utilize the existing employees on the date of making the decision on
equitization and provide sufficient benefits for employees who resign or are
made redundant.
The JSC shall take all responsibilities related to
employees from the converted equitized enterprise; have the right to recruit
and allocate the workforce and cooperate with relevant authorities in providing
sufficient benefits for employees.
2. The equitized enterprise shall cooperate with
relevant authorities in conducting inspections and settling financial issues in
order to determine the state capital value on the official date of
equitization.
3. The JSC shall be entitled to use the entire
assets and sources of capital transferred for business; inherit all legitimate
and rights and benefits, take responsibilities for debts including tax debts,
labor contracts and other obligations of the equitized enterprise.
4. Surplus or deficit assets compared to the
equitized enterprise value decided and published shall be disposed of as
follows:
a) In case the enterprise still has state capital
after the equitization:
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If the enterprise has not made the terminal statement
on the official date of equitization, the surplus assets shall be recorded as
an increase in state capital in the JSC (if the JSC wishes to use the assets
and the use of the surplus assets by the JSC is approved by the resolution of
the General meeting of shareholders) or shall be transferred to the DATC (if
the JSC does not wish to use the assets).
If the enterprise has made the terminal statement
on the official date of equitization, the assets shall be transferred to the
DATC.
- Deficit assets after being offset against
compensation (if any):
If the enterprise has not made the terminal
statement on the official date of equitization, the assets shall be aggregated
with business expenses incurred over the period from the date of enterprise
valuation to official date of equitization.
If the enterprise has made the terminal statement
on the official date of equitization, the deficit assets shall be recorded as
decrease in state capital in the JSC (if a resolution has been adopted by the
General meeting of shareholders) or aggregated with business expenses of the
JSC (if the resolution is rejected by the General meeting of shareholders).
b) In case the enterprise no longer has state
capital after the equitization:
- The surplus assets shall be transferred to the
DATC.
- The deficit assets after being offset against
compensation (if any) shall be aggregated with business expenses of the JSC.
Article 11. Transparency and
listing
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2. When making a document on the IPO auction, the
equitized enterprise shall prepare both an application for share deposit and an
application for listing or registration at the stock market (if the equitized
enterprise is eligible to be listed in compliance with regulations of law on
securities).
3. Within 90 days from the end of the IPO, the
equitized enterprise shall complete procedures for registration of deposit of
share certificates at the Vietnam Securities Depository and transaction
registration on the unlisted public company market (UPCOM) transaction system.
4. The enterprise equitized in the form of both
selling part of state capital and issuing additional shares to increase charter
capital through public auction for the IPO if satisfying all requirements
listed at the stock exchange shall submit the application for listing after the
offering and report results thereof to the State Securities Commission.
5. The representative authority shall specify
equitization listed on the stock market in the equitization plan in order to
inform investors before the initial offering.
Where the equitized enterprise is listed at the
stock exchange, the representative authority shall decide the minimum number of
subscribed shares over the number of IPO shares so that the enterprise meets
all requirements for listing shares after the equitization. The minimum number
of subscribed IPO shares shall abide by the principle of equality for all types
of ownership.
Article 12. Provision of
equitization consulting services
1. The equitized enterprise shall be entitled to
hire a consulting firm to determine the enterprise value and the starting price
and develop plans for equitization and initial offering.
2. The equitized enterprise shall hire the
consulting firm qualified for providing consulting services to determine the
enterprise value.
3. The representative authority shall decide the
consulting firm having all the qualifications specified in Clause 5 and Clause
6 this Article to determine the enterprise value according to the following
rules:
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b) If the consulting contract package is not
included in the provision of Point a this Clause, the representative authority
shall decide to organize a bidding to select the consulting firm in accordance
with regulations of law on bidding.
4. The consulting firm determining the enterprise
value shall be entitled to select appropriate methods to determine the
enterprise value and ensure the rules mentioned herein, regulations of law on land
and pricing, valuation and perform tasks on schedule and in accordance with
commitments stated in the concluded contract. The equitized enterprise shall
provide adequate and true information about the enterprise for the consulting
firm to determine the enterprise value used for price determination.
5. A domestic consulting firm shall satisfy the
following standards:
a) It is an auditing company, securities company or
assessment enterprise established and operating in Vietnam in accordance with
regulations of law;
b) It has at least 5-year experience (operating for
60 consecutive months from the day on which the application for provision of
consulting services to determine the enterprise value is submitted) of working
in the field of assessment, audit, accounting, financial services or enterprise
ownership conversion consulting.
During the past 3 years from the day on which the
application for provision of consulting services to determine the enterprise
value is submitted, the consulting firm shall reach at least 30 service
provision contracts in any of the above-mentioned fields;
c) It is not undergoing dissolution, bankruptcy,
restructuring or put under special control by a competent state authority;
d) It has at least 3 appraisers whose appraisal cards
are granted by the Ministry of Finance. Each appraiser shall conclude either
the definite-term or indefinite-term labor contract mentioned in Point a or
Point b Clause 1 Article 22 of the Labor Code No. 10/2012/QH13 with the
domestic consulting firm.
If it has fewer than 3 appraisers, the domestic
consulting firm shall conclude a joint-venture contract with a qualified
domestic assessment firm;
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e) It does not incur any administrative penalties
or more serious penalties for violations against regulations of law on business
lines within 5 consecutive years before the year of registration;
g) It has (official) process to determine the
enterprise value in accordance with regulations of law on conversion from
state-owned enterprises into JSCs and assessment standards.
6. A foreign consulting firm shall satisfy the
following standards:
a) It operates in the field of assessment, audit,
accounting, financial services or enterprise ownership conversion consulting in
accordance with regulations of law of the country where the headquarters is
located;
b) It has prestigiousness, capacity, brand and at
least 5-year experience (operating for 60 consecutive months from the day on
which the application for provision of consulting services to determine the
enterprise value is submitted) of working in the field of assessment, audit,
accounting, financial services or enterprise ownership conversion consulting;
c) If it has fewer than 3 appraisals, the foreign
consulting firm shall conclude a joint-venture contract with a qualified
domestic assessment firm.
7. Responsibilities of the consulting firm:
a) Comply with regulations of relevant law in the
course of determining the enterprise value and execute the contract concluded
with the enterprise;
b) Take responsibilities for the enterprise value;
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d) Explain or provide information or data related
to the enterprise value if required or at the request of the representative
authority, State Audit Office of Vietnam, Ministry of Finance or relevant
competent state authorities.
dd) Protect the confidentiality of the enterprise;
retain documents on the enterprise when its value has been determined;
e) A consulting firm shall not provide consulting
services if:
- Its executive officer (defined in Clause 18
Article 4 of the 2014 Law on Enterprises), the chief accountant (or person
responsible for accounting) or the appraiser of the consulting firm (stated in
Clause 17 Article 4 of the 2014 Law on Enterprises) is related to the equitized
enterprise.
- It is providing or has provided audit, accounting
or financial statement services within 2 years preceding the year in which the
equitized enterprise has its value determined.
Chapter II
SETTLEMENT OF FINANCIAL
ISSUES WHEN EQUITIZING
Article 13. Stocktaking and
classification of assets and settlement of financial issues
1. Enterprises on the lists of enterprises that
have to be equitized compiled by competent authorities shall review all land
area that they are managing or using for making a land use plan in accordance
with regulations of law on land, re-arrangement or settlement of housing and
land under state ownership and request a competent state authority to consider
approving it before the equitization is decided.
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2. When receiving a decision on equitization from a
competent authority, the enterprise shall carry out stocktaking or classify the
assets, sources of capital and funds managed by the enterprise; use, verify
debts on the date of enterprise valuation.
3. The equitized enterprise shall audit annual financial
statements in accordance with the State's regulations. If the date of
enterprise valuation is not on the ending date of the fiscal year, the
equitized enterprise shall make the financial statement on the former date.
When the parent company is equitized, all
subsidiaries 100% of charter capital of which is held by the parent company
shall have undergo enterprise valuation in accordance with this Decree. The
enterprise value of the subsidiaries and the parent company shall be determined
on the same date.
4. If the date of enterprise valuation is not on
the ending date of the fiscal year, the equitized enterprise shall request the
supervisory tax authority to settle the amounts payable to state budget before
determining the enterprise value.
If the date of enterprise valuation is not on the
ending date of the fiscal year, the equitized enterprise shall request the
supervisory tax authority to inspect or determine amounts payable to state
budget before determining the enterprise value.
Within 30 days from the date of receiving the
written request from the enterprise, the tax authority shall carry out
inspections or make settlement. If the tax authority fails to conduct
inspections or make financial statements after the aforesaid time limit, the
equitized enterprise shall determine the enterprise value according to the
declared figures.
5. The equitized enterprise shall cooperate with
relevant authorities in settling financial issues before determining the
enterprise value on the basis of stocktaking results, audit of financial
statements and financial statements on amounts transferred to state budget.
The equitized
enterprise shall promptly inform a competent authority of any issues ultra
vires.
If the aforesaid issues fail to be settled by the
competent authority, the enterprise shall specify such issues in a record on
the equitized enterprise value from the date of enterprise valuation to the
official date of equitization.
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1. The asset that is rented, borrowed, received
from joint-venture or associated capital and other assets not owned by the
enterprise shall not be added to the enterprise value before equitization.
Other assets formed by the investment assistance
capital from state budget that the equitized enterprise shall only be
responsible for acting as the investor but not responsible for managing, using
or exploiting technical infrastructure shall not be added to the enterprise
value for equitization and the equitized enterprise shall request the competent
state authority to consider making a decision on disposal of such assets in
accordance with regulations of law on management of state assets.
2. The equitized enterprise shall dispose of
redundant assets in conformity with regulations of law on liquidation and sale
of assets.
If such assets fail to be disposed of on the date
of enterprise valuation, apart from the provision of Clause 3 this Article, the
equitized enterprise shall transfer them to the DATC. The remaining value
stated in books of such assets shall be aggregated with business expenses of
the enterprise in the current period.
3. Assets that must not be excluded from the
enterprise value:
a) In case of housing or structures (including
underground construction works, streets, walls or fields) that the enterprise
uses directly or indirectly; machines, equipment or vehicles used for 5 years
or having the remaining value accounting for 50% of the cost or over stated in
the accounting record, the enterprise shall continue to manage, monitor and
settle such assets in accordance with regulations of law until the official
date of equitization.
b) The enterprise shall cooperate with law
enforcement authorities in treating or destructing chemicals, hazardous
substances, expired pesticides, etc. in compliance with regulations of law on
environmental safety before the equitized enterprise obtains the certification
of first registration of JSC.
After the cause and responsibility to pay
compensation are determined, the loss incurred by the enterprise shall be
offset against its income.
c) In case of costs of construction in progress of
a project or construction work delayed according to a competent authority’s
decision, the equitized enterprise shall continue to inherit, monitor and
settle such assets in accordance with regulations of law. The enterprise shall
determine the entities liable for the unrecoverable costs of intangible items
(such as costs of prefeasibility study, construction survey, design); the loss
shall be offset against revenue as prescribed.
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dd) In case of the enterprise assets stated in
Clause 2 Article 4 herein, during the cooperation with the DATC and creditors
of the enterprise in developing the debt sale plan to restructure the
enterprise and request the representative authority for approval, the equitized
enterprise shall not liquidate or sell assets on the list that the
representative authority publishes the enterprise value.
4. The welfare construction work that are
nurseries, kindergartens, health facilities and others purchased with the
reward or welfare fund shall be managed or used by the labor union of the JSC
in order to serve its staff.
The housing of officials or employees funded by the
welfare fund of the enterprise including housing funded by the state budget
shall be managed by the local land authority.
5. The assets used for production or sale purchased
with the reward or welfare fund shall be reassessed and added to the enterprise
value for the JSC to continue using if they have adequate documentation.
6. Stocktaking, assessment or classification of
assets that are capital in cash, finance lease assets and debts receivable and
debts payable of a state-owned commercial bank shall comply with specific
guidance provided by the Ministry of Finance.
7. Vocational training centers and health
facilities in economic groups or corporations shall not be divided or
transferred when such groups or corporations are equitized. Vocational training
centers and health facilities shall be equitized together with the parent
company.
8. In case of equitization of the parent company
having financially autonomous public service providers (except for vocational
training centers and health facilities):
a) If the equitized enterprise inherits the assets,
their values shall be assessed and added to the enterprise value in accordance
with regulations of law on conversion of public service providers into JSCs.
b) If the equitized enterprise does not inherit the
assets, the steering committee shall request the representative authority to
consider making a decision or request the Prime Minister to decide to transfer
such assets to relevant ministries or provincial People’s Committees. Before
the assets are transferred, the equitized enterprise shall be entitled use them
until a decision is issued by a competent authority.
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1. The equitized enterprise shall verify all debt
receivables (including due and undue debts; off-balance sheet receivables shall
be verified by a credit institution (if any)) and collect due debts before the
equitized enterprise value is determined.
Debts whose debtors or irrecoverability is not
adequately proven by documents shall not be excluded from the enterprise value
is dealt with as follows:
a) Assign responsibility for debts with
unidentified debtors, the remaining loss shall be dealt with in accordance with
regulations of law on dealing with outstanding debts.
b) Complete documents and continue to monitor
unproven irrecoverable debts.
2. If some debt receivables have adequate documents
but fail to be verified on the date of enterprise valuation, the chairperson or
the board of members of the equitized enterprise shall explain clearly contents
of the debts and assign people in charge of verification before the equitized
enterprise obtains the certification of first registration of JSC and request
the representative authority to consider deciding according to the value
followed on accounting records; and specify such contents in the decision on
approval for the enterprise value and the equitization plan as the basis for
the auction of shares.
If the debts are not verified when the
equitized enterprise obtains the certification of first registration of JSC,
when making financial statements to transfer to the JSC, responsibility for
compensation shall be assigned. The remaining debts (after offsetting
compensation for entities or making provisions for bad debts (if any)) shall be
aggregated with business expenses of the equitized enterprise and documents
shall be transferred to the DATC.
3. The equitized enterprise shall transfer the
debts not added to the equitized enterprise value (including bad debts that
have been handled by provisions within 5 consecutive years preceding the date
of enterprise valuation) and all related documents to the DATC.
4. In the cases where prepayments (such as: house
rent, land rent, goods payment, remuneration, long-term insurance payment,
lump-sum industrial park land rent) have been aggregated with business
expenses, the enterprise shall compare to the contract and quantity of provided
goods/services to aggregate so as to reduce costs (corresponding to the
goods/services that have not been provided or the lease term has not been set)
and aggregate to increase prepaid costs when the equitized enterprise value is
determined.
Article 16. Debt payables
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If some debt payables have adequate documents but
fail to be verified on the date of enterprise valuation, the chairperson or the
board of members of the equitized enterprise shall explain clearly contents of
the debts and assign people in charge of verification before the equitized
enterprise obtains the certification of first registration of JSC and request
the representative authority to consider deciding according to the value
followed on accounting records; and specify such contents in the decision on
approval for the enterprise value and the equitization plan as the basis for
the auction of shares.
When the equitized enterprise obtains the
certification of first registration of JSC, when making financial statements to
transfer from the state-owned enterprise to the JSC, the values of the debts
without identified debtors may be recorded as increases in state capital. The
JSC (after converted from the state-owned enterprise) shall retain documents
and continue to monitor the debts and pay them if required by the creditors and
aggregate the repaid debts with business expenses of the enterprise in the
current period.
2. The equitized enterprise shall mobilize sources
of legal capital to pay for due debts that must be prepaid when the equitized
enterprise value is determined or reach an agreement with the creditor including
conversion from payables into stake.
The conversion of debt payables on the date of
enterprise valuation into stake shall be specified in the equitization plan,
stated in the prospectus of initial offering and carried out through the
successful bid made by the creditor. Accordingly, the creditor shall purchase
shares at the IPO auction and convert the number of shares corresponding to the
debts based on the successful bid of the creditor.
3. Tax debts and other payables to the State:
a) The equitized enterprise shall transfer tax and
debts to the State before conversion;
b) If the equitized enterprise has not transferred
tax and payables to the State, the JSC shall inherit the entire debts.
4. Any difficulties of possibility to pay for
outstanding debts to the credit institution by the enterprise in the course of
equitization (including the Vietnam Development Bank) due to business loss
shall be handled in accordance with regulations of the State on dealing with
outstanding debts.
Article 17. Provisions, loss
and profit
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2. The equitized enterprise is entitled to the
remainder of the provisions for warranty of goods or construction works on the
date of enterprise valuation corresponding to the warranty obligation stated in
an effective contract.
3. The exchange gain due to reassessment of foreign
currency monetary items on the date of enterprise valuation shall be reassessed
in accordance with regulations and shall not be aggregated with income. The
equitized enterprise shall keep monitoring the exchange gain accrued from the
date of enterprise valuation to the official date of equitization.
4. The provisions for risks of the bank or
provisions for profession of insurance after being offset against the loss
shall be given to the equitized enterprise and added to the state capital value
of the equitized enterprise.
5. The profit after being offset against the loss
in the previous year (if any) in accordance with regulations of the Law on
Corporate income tax contributed to the scientific and technological development
fund shall be deducted in accordance with regulations of law, the corporate
income tax shall be transferred and the remaining profit shall be distributed
in accordance with regulations for the state-owned enterprise on the date of
enterprise valuation.
6. If the debts of credit institutions are still
outstanding after the loss has been handled in accordance with the aforesaid
regulations until the date of enterprise valuation (including the Vietnam
Development Bank), the equitized enterprise shall cooperate with relevant
authorities to deal with such debts under regulations of law and the provision
of Clause 4 Article 16 herein.
Article 18. Capital of
equitized enterprises invested in other enterprises
1. If the equitized enterprise inherits the stakes
in other enterprises, the stakes shall be determined according to the rules
stated in Article 32 herein.
2. Where the equitized enterprise fails to inherit
the stakes in other enterprises, the representative authority shall:
a) reach an agreement with capital contributors to
transfer the stakes to another state-owned enterprise.
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c) The equitized enterprise failing to sell or
transfer the stakes to another partner by the date of determining shall inherit
such stakes in compliance with the provision of Clause 1 this Article.
3. In the cases where the investment value of the
equitized enterprise in foreign-invested enterprise but there is a commitment
provision on termination of operating term of such enterprise stated in the
contract or license for capital contribution, the entire assets of the
enterprise transferred without refunding to the domestic enterprise that the
equitized enterprise continues to inherit shall be added to the enterprise
value to equitize in compliance with the rules mentioned in Article 32 herein.
When the foreign-invested enterprise terminates the operating term stated in
the contract or the investment license, the JSC shall transfer non-refundable
assets to the State in conformity with regulations of law on management and use
of public assets. The equitized enterprise shall publish information about such
contents to the investor and specify them in the asset transfer record and the
charter of JSC.
Article 19. Unused reward or
welfare fund and fund for reward of enterprise managers and controllers
1. The unused reward fund on the date of enterprise
valuation shall be used to offset the expenses exceeding policies for employees
(if any), expenses paid to employees in accordance with regulations of the
state-owned enterprise and the remaining amount shall be paid to employees of
the enterprise based on the number of months that they work for the equitized
enterprise. The payment for unused reward fund for employees shall be made
before the date of equitization.
2. The unused welfare fund on the date of
enterprise valuation shall be used to offset the expenses exceeding benefits
for employees (if any), expenses paid to employees in accordance with
regulations of the equitized enterprise and the remaining amount shall be paid
to employees, managers and controllers of the enterprise based on the number of
months that they work for the equitized enterprise. The payment for the unused welfare
fund for employees, managers and controllers of the enterprise shall be made
before the date of equitization.
3. The unused reward fund for the enterprise
managers and controllers on the date of enterprise valuation shall be
continuously used under policies for the state-owned enterprise and handled
according to the provision of Point e Clause 2 Article 21 herein.
4. When the parent company is equitized, the unused
funds mentioned in Clause 1, Clause 2 and Clause 3 this Article shall be
handled according to the fund of the enterprise (parent company or level II
enterprise) provided for employees and managers thereof.
Article 20. Unused funds of
enterprise assistance funds and scientific and technological development funds
1. The unused fund of the enterprise assistance
fund of the equitized enterprise (if any) shall be considered the state capital
and transferred to Enterprise Assistance and Development Fund.
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Article 21. Settlement of
financial issues on the official date of equitization
1. The equitized enterprise shall continue to
comply with regulations on settlement of financial issues for the state-owned enterprise
from the date of enterprise valuation to the official date of equitization.
2. From the day on which the equitized enterprise
obtains the certification of first registration of JSC, the equitized
enterprise shall make financial statements according to financial policies for
state-owned enterprises as the basis for equitization, in which:
a) The unused provisions for devaluation of stocks,
financial investments or bad debts (if any) may be used to offset the loss. Any
remainder after offsetting shall be added to the income of the equitized
enterprise.
The remainder of the provisions for warranty of
goods or construction works (if the concluded contract or warranty period is
effective) of the equitized enterprise shall be deducted according to the contract
and retained to provide warranty for goods or construction works under the
contract terms.
The equitized enterprise shall make specific
declaration for each type of goods or construction work and documents on
equitization. If such provisions fail to be paid off and there is still
remainder if the warranty period of goods or construction works runs out, the
JSC shall transfer the unused provisions to the Enterprise Assistance and
Development Fund within 30 days from the day on which the warranty period
expires.
The JSC shall pay an interest under regulations on
management and use of the Enterprise Assistance and Development Fund if it
fails to transfer these amounts in full and on schedule.
b) The exchange gain due to reassessment of
currency items derived from the foreign currency on the date of official
conversion into the joint-stock company shall be reassessed in accordance with
regulations and shall not be aggregated with income. The exchange gained
accrued on such date shall be transferred to the joint-stock company (after
converted from the state-owned enterprise).
c) In case of the profit after tax, dividend
distributed through financial investment (when the resolution of the General
meeting of shareholders or board of members has been given at an organization
receiving capital contribution) arising from the date of enterprise valuation
to the official date of equitization but the payment fails to be collected, the
equitized enterprise shall add the revenue earned from financial operations and
add the debt receivables.
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dd) Distribution of profit and contribution to
funds shall comply with regulations of law applying to state-owned enterprises.
If the official date of equitization and the date
of making the annual financial statement are not on the same date that leads to
failure to rank the enterprise as the basis for making provisions for the
enterprise's funds, the equitized enterprise shall make the reward fund for the
enterprise managers and controllers and the reward and welfare funds according
to:
- The ranking of the enterprise in the year
preceding the year in which the enterprise is converted into the JSC.
- The profit under policies for deduct or
distribute the enterprise's funds.
- The contribution to funds equal to that under
policies for profit distribution applied to the state-owned enterprise divided
by (:) 12 and multiply by the number of months from the beginning of year until
the official date of equitization.
e) The equitized enterprise shall manage and spend
the reward fund for enterprise managers and controllers on the official date of
equitization. If there is still unused fund after being settled, the equitized
enterprise shall request the representative authority to consider deciding to
transfer it to the Enterprise Assistance and Development Fund.
3. Within 90 days from the date of issuance of the
certification of first registration of JSC, the equitized enterprise shall:
a) make the financial statement on the date of
obtaining the certification of first registration of JSC;
b) audit the financial statement;
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d) After fulfilling the tasks mentioned in Point a,
b and c this Clause, the equitized enterprise shall request the representative
authority to approve the state capital value on the official date of
equitization and make terminal statements on the revenue earned from
equitization, expenses for redundancy policies and equitization expenses.
4. Within 60 days from the day on which the request
for approval for the state capital value is received on the official date of equitization,
the representative authority shall cooperate with relevant authority in
conducting inspections and settling financial issues of the enterprise and
giving the decision on approval for financial statements, terminal statements
on revenue earned from equitization, equitization expenses, expenses for
redundancy policies and the decision on publishing the actual state capital
value on the date of official conversion from the equitized enterprise into the
JSC and determining the additional payment in accordance with regulations on
the Enterprise Assistance and Development Fund (if any).
5. The equitized enterprise shall remake the
financial statement on the date of obtaining the certification of first registration
of JSC to transfer to the JSC according to the decision on approval made by the
representative authority.
The financial statement shall be remade to transfer
to the JSC according to the adjustment of settlement of financial issues stated
herein, making terminal statements on revenue earned from equitization,
equitization expenses, expenses for redundancy policies and the decision on
publishing the actual state capital value on the date of official conversion
from the equitized enterprise into the JSC (not adjusted according to the
revaluation results).
6. The equitized enterprise shall utilize the
profit after tax arising from the date of enterprise valuation to the date of
obtaining the certification of first registration of JSC to offset the state
capital adjusted due to loss in business on the date of enterprise valuation
(if any), distribute the remaining amount and make provisions for the funds
mentioned in Point dd Clause 2 this Article.
The equitized enterprises shall transfer the profit
deducted from the development investment fund and the difference in the state
capital increasing from the date of enterprise valuation to the official date
of equitization after deducting expenses to the Enterprise Assistance and
Development Fund.
7. If the difference in reduction of the state
capital value, the equitized enterprise shall report the representative
authority to cooperate with relevant authorities in investigating and finding
causes, assigning responsibilities of cooperatives and dealing with the
following cases:
a) In case of force majeure events (acts of God,
enemy-inflicted destruction; change in polices made by the State or change in
international market and other force majeure events), the equitized enterprise
shall request the representative authority to consider making a decision on
utilization of revenue earned from offering of shares to offset the loss after
deducting the compensation for insurance (if any).
In the cases where such revenue fails to offset the
reduced state capital value, the representative authority shall consider
through the General meeting of shareholders to reduce the state capital
contributed to the JSC, charter capital and structures of charter capital of
the JSC accordingly.
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- If the loss fails to settle financial issues in
accordance with regulations of the State, responsibilities of the enterprise,
consulting firm, auditing authority, State Audit Office of Vietnam and
authority deciding equitization shall be identified to provide compensation.
- If the loss arises due to the execution of
business or management causing damage to capital and assets, the enterprise
manager shall provide compensation for such damage.
- If the entity responsible for providing
compensation fails to compensate according to a decision made by a competent
authority due to a force majeure event, the remaining damage shall be handled
as the same as that caused by a force majeure event mentioned in Point a this
Clause.
8. In case of the assets stated in Clause 4 Article
10 herein, the equitized enterprise shall store such assets and transfer it to
the DATC within 15 days from the day on which the representative authority
gives a decision on asset transfer to the DATC.
Chapter III
DETERMINATION OF THE
EQUITIZED ENTERPRISE VALUE
Section 1. DETERMINATION OF THE
ENTERPRISE VALUE
Article 22. Methods for
determining the enterprise value
1. The consulting firm determining the enterprise
value shall be entitled to select appropriate methods to determine the
enterprise value in accordance with regulations of law on prices and make sure
that each equitized enterprise applies at least 2 different methods for
determining the enterprise value, which are subject to approval by the
representative authority.
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Article 23. Publishing of the
enterprise value
1. According to documents on the enterprise value
produced by the consulting firm determining construction prices, the steering
committee shall inspect procedures and comply with regulations of law on
determination of the enterprise value and request the representative authority
for approval.
The time for settling financial issues and
providing consulting services of determining the enterprise value (from the
date of enterprise valuation to the date of publishing it) shall not exceed 12
months (15 months if the enterprise has to undergo state audit according to
Clause 1 Article 26 of this Decree).
If the equitized enterprise value fails to be
published within the aforesaid time limit, the representative authority shall
adjust the date of enterprise valuation to settle financial issues and
determine the enterprise value in accordance with regulations; assign
responsibility for the costs incurred due to delay in publishing the enterprise
value.
2. The representative authority shall consider
deciding and publishing the enterprise value within 15 working days from the
day on which all documents are received (including the conclusion of the State
Audit Office of Vietnam regarding the enterprises mentioned in Clause 1 Article
26 herein).
3. Within 15 working days from the day on which the
representative authority gives a decision on publishing of the enterprise
value, the equitized enterprise shall preserve the assets and transfer the
debts and assets excluded from the enterprise value in accordance with the
provision of Clause 2 Article 14, Clause 2 and Clause 3 Article 15 herein to
the DATC; in case of other assets, the equitized enterprise shall continue to
follow, manage and aggregate according to the value of accounting records on
the date of enterprise valuation.
Article 24. Utilization of
enterprise value
Results of the enterprise value published by the
representative authority shall be the important basis for determining the
starting price for the initial offering of the equitized enterprise.
Article 25. Adjustment of the
enterprise value
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a) A force majeure event (act of God,
enemy-inflicted destruction, change in polices made by the State or another force
majeure event) affects the asset value of the enterprise.
b) Difference in the process of determining the
enterprise value by the consulting firm or the equitized enterprise is found.
2. Adjustment of the published enterprise value
mentioned in Clause 1 this Article shall only apply to the equitized enterprise
that the IPO has not been carried out.
3. The enterprise that has not carried out the IPO
after 9 months from the date of publishing the enterprise value shall
recalculate the enterprise value unless otherwise stated in the Prime
Minister’s decision.
Article 26. State audit of
equitized enterprises
1. Entities carrying out audit:
On the basis of the enterprise value for
equitization that has been determined by the consulting firm and comments of the
representative authority, the State Audit Office of Vietnam shall audit the
enterprise value and settle financial issues before carrying out assessment for
the following enterprises:
a) Wholly state-owned single-member LLCs that are
parent companies of state-owned economic groups and parent companies of state
corporations (including state-owned commercial banks);
b) State-owned enterprises (including parent
companies in groups of parent companies and subsidiaries and wholly state-owned
single-member LLCs) having state capital of at least VND 1,800 billion stated
in accounting records on the date of enterprise valuation;
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d) Other single-member LLCs at the request of the
Prime Minister or the representative authority.
2. The representative authority of the enterprise
mentioned in Point a, b or c Clause 1 this Article shall send the schedule to
carry out equitization of enterprises to the State Audit Office of Vietnam.
State Audit Office of Vietnam shall plan the audit of the enterprise value and
settlement of financial issues before publishing the equitized enterprise
value.
In case of the enterprises stated in Point d Clause
1 this Article, within 5 working days from the date receiving the request of
carrying out audit from the Prime Minister, the representative authority shall
send the list of schedule to carry out equitization of enterprises to the State
Audit Office of Vietnam before publishing the equitized enterprise value.
3. Responsibilities of the State Audit Office of
Vietnam and relevant authorities:
a) After the enterprise value is given, the
representative authority shall send documents and an application for auditing
the enterprise value and financial handling to the State Audit Office of
Vietnam before publishing the equitized enterprise value;
b) Within 10 days from the date receiving the
application from the representative authority, the State Audit Office of
Vietnam shall audit the enterprise value and settle financial issues for the
equitized enterprise. The time limit for completing and publishing audit the
enterprise value shall be 60 days from the day on which the audit is carried
out. The State Audit Office of Vietnam shall take responsibility for audit
results in accordance with regulations of law;
c) The equitized enterprise and consulting firm
shall provide explanation and adequate documents related to determination of
enterprise value and financial handling before assessing at the request of the
State Audit Office of Vietnam.
4. Dealing with audit results:
According to audit results produced by the State
Audit Office of Vietnam, the representative authority shall consider publishing
the enterprise value and take the next step of the equitization process.
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Section 2. DETERMINATION OF
ENTERPRISE VALUE BY THE ASSET-BASED METHOD
Article 27. Determination of
equitized enterprise value by the asset-based method
1. The total actual value of the equitized
enterprise shall be the value of the entire assets of the enterprise on the
date of enterprise valuation after reassessing the profitability of the
enterprise.
The actual value of the state capital of the
equitized enterprise shall be the value after deducted from payables and unused
funds (if any) and excluding exchange gain due to reassessment of currency
items derived from the foreign currency mentioned in Clause 3 Article 17
herein.
2. When the parent company is equitized, the state
capital value of the equitized enterprise shall be the actual state capital
value of the parent company.
3. A financial institution or credit institution
may use the financial statement audit result to determine cash assets, debts
and other assets while applying the asset-based method provided that the
quantities and value fixed assets, investments into another enterprise and
value of the land use rights are verified in accordance with the State
policies.
4. The equitized enterprise wishing to continue to
use intangible assets (excluding land use rights) shall recalculate its value
and add it to the enterprise value. The value of the intangible assets shall be
determined according to regulations of law on assessment identified by an
appraiser in charge.
5. The unpaid shares received by the equitized
enterprise by the enterprise valuation date shall be recorded as increases in
state capital at the price specified in Article 32 of this Decree and recorded
as increases in the value of financial investments.
6. The assets formed under a build-operate-transfer
(BOT) contract shall be determined according to the value stated in books and
informed to investors and transferred to a competent authority after such
contract expires.
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8. In case of the asset that the enterprise has
liquidated or sold from the date of enterprise valuation to the day on which
the enterprise value is determined by the consulting firm (when there is no
exhibit available), the enterprise shall aggregate in accordance with policies
on financial management of revenue and spending when liquidating or selling or
when the consulting firm assesses to determine the enterprise value, it will
rely on the actual value of the appropriated asset for liquidate or for sale
provided that it is not under the value stated in accounting records.
Article 28. Amounts not
included in the enterprise value for equitization
1. Values of the assets mentioned in Clauses 1, 2
and 4 Article 14 herein.
2. Irrecoverable debts.
3. Investments in other enterprises stated in Point
a and Point b Clause 2 Article 18 herein.
4. Assets of financially autonomous public service
providers when the parent company (except for vocational training centers and
health facilities) is equitized; assets of professional operation or equitized
enterprises not inheriting and considered transferring to relevant authorities
by representative authorities to involve in public sectors.
5. The person having the power to decide the
enterprise value shall decide whether to add the amounts mentioned in Clauses
1, 2, 3 and 4 this Article to the enterprise value and take responsibility for
such decision.
Article 29. Basis to determine
the actual enterprise value
1. Figures stated in accounting records of the
enterprise on the date of enterprise valuation.
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3. Market prices of assets on the date of
enterprise valuation.
4. Value of land use rights and recalculated land
rent and goodwill of the enterprise.
Article 30. Value of land use
rights
1. Land area allocated to use for the purposes of
building housing for sale and infrastructure for transfer or for lease in
accordance with the plan for land use made by the equitized enterprise approved
by a competent state authority shall have the value of land use rights
recalculated to add to the enterprise value as follows:
a) Land price to add the value of land use rights
to the equitized enterprise value means the particular land price at the
location where the enterprise has land allocated by the provincial People’s
Committee under the provisions of Clause 3 and Point d Clause 4 Article 114 of
the Land Law.
b) The difference between the recalculated value of
land use rights stated in Point a this Clause and the value aggregated in
accounting records (if any) that is aggregated shall be transferred to state
budget.
In the cases where the value of land use rights
recalculated according to the land price stated in Point a this Clause is lower
than that aggregated in accounting records, the value of land use rights shall
be added to the equitized enterprise in accordance with the enterprise value
aggregated in accounting records.
c) If the enterprise having the land allocated
including the land area used for providing public or welfare services/goods
such as: green parks, urban environment works, coach stations or irrigation works,
etc. shall not pay for land levy under regulations of law on land, such area
shall be excluded when determining the value of land use rights to add to the
equitized enterprise value. The land area used for public works having safety
corridors in accordance with regulations of law on land shall be considered
excluding by a competent authority. The equitized enterprise shall manage and
use such land area in compliance with the purposes of land use determined and
regulations of law on land.
2. In case of other land area (after excluding the
land area mentioned in Clause 1 this Article) stated in the plan for land use
made by the equitized enterprise approved by the competent state authority, the
enterprise shall lease land in fixed-term according to regulations of law on
land and pay for annual land rent under the particular land price at the
location where the enterprise has land leased out by the provincial People’s
Committee in accordance with the provisions of Clause 3 and Point d Clause 4
Article 114 of the Land Law.
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Levied land area that the State allocates and land
area that the enterprise receives from transfer is derived from levied land
allocates by the State but now treated as rented land under provisions of the
2013 Land Law shall be repurposed as rented land. The payment that the
enterprise has made when the State allocates land or to receive transfer of land
use rights not aggregated with the income from the date of enterprise valuation
shall be the prepaid amount and deducted from the land rent that the JSC must
pay annual according to the particular land price decided by the provincial
People’s Committee.
3. In case of land area that a national security
enterprise equitized uses is included in the land planning used for national
security purposes without demand for using, the Ministry of National Defense
and the Ministry of Public Security shall cooperate with the provincial
People’s Committee where the enterprise has land area for use in considering
whether the enterprise continues to use until a decision on appropriation given
by a competent state authority under the provision of Clause 3 Article 148 of the
2013 Land Law.
4. Within 60 days from the date of obtaining the
certification of first registration of JSC, the equitized enterprise shall
follow procedures for land allocation or lease out by the State under
regulations of law on land.
5. The JSC converted from the enterprise stated in
Clause 2 and Clause 3 Article 2 herein shall manage and use land for the proper
purposes and use plan for the entire land area approved by a competent
authority in accordance with regulations of law on land.
6. Responsibilities of the provincial People’s
Committee:
a) Within 30 working days from the day on which the
application is received, the provincial People’s Committee shall decide whether
the enterprise will continue to use the entire land area after equitization and
the particular price stated in this Article under regulations of law on land.
b) If the proposal for using land submitted by the
enterprise fails to meet the local general planning and purposes of land use
according to a competent state authority’s decision on rearrangement or
disposal of housing and land under state ownership, the enterprise shall
transfer land to the State and the provincial People’s Committee shall
cooperate with the representative authority in handling relevant problems.
c) The provincial People’s Committee shall direct
law enforcement authorities to provide guidelines for the equitized enterprise
in order to follow all procedures for conclusion of the land lease agreement
and issue the certificate of land use rights, house ownership and other
property on land under regulations of law on land.
Article 31. Goodwill
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2. The goodwill of the equitized enterprise shall
be determined as follows:
a) The brand value shall be determined on the basis
of actual expenses for creating and protecting the brand and trade names in the
operation of the enterprise over 5 years before the date of enterprise
valuation, including costs of establishing the enterprise, employee training,
commercial, nationwide and international dissemination, product or company
introduction; or developing the enterprise’s website.
In case of a special enterprise, the consulting
firm shall request the representative authority to identify the brand value
depending on its background and tradition.
b) The development potential value added to the
equitized enterprise value means the development potential of the enterprise
assessed on the basis of the enterprise’s profitability in the future when
comparing the rate of return of the enterprise with the interest rate of the
sovereign bond as follows:
Development
potential value
=
State capital
value stated in accounting records on the date of enterprise valuation
x
Rate of return
after tax over state capital for 5 years on average before the date of
enterprise valuation
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Interest rate of
the successful bid of sovereign bond for 5 years quoted by the Ministry of
Finance on the last date before the date of enterprise valuation
Where:
- The state capital value stated in accounting
books on the date of enterprise valuation shall be the total actual value after
deducting debt payables and unused funds (if any) and excluding the exchange
gain due to reassessment of currency items derived from the foreign currency
mentioned in Clause 3 Article 17 herein.
- The state capital shall be determined according
to the unused funds of investments by the owner – account No. 411; development
investment fund – account No. 414 and capital construction investments –
account No. 441 stated in the Circular No. 200/2014/TT-BTC dated December 22,
2014 by the Ministry of Finance on providing guidelines for enterprise
accounting. The state capital of equitized enterprises that are credit
institutions shall be determined according to the guidelines of the State Bank
of Vietnam.
- The rate of return after tax shall be determined
as follows:
Rate of return after tax over state capital for 5
years on average before the date of enterprise valuation
=
Rate of return
after tax for 5 years on average preceding the date of enterprise valuation
X
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State capital
stated in accounting records for 5 years on average preceding the date of
enterprise valuation
The state capital stated in accounting records for
5 years on average shall be determined according to the total annual state
capital on average divided by (:) 5. The annual state capital on average shall
be determined according to the state capital at the beginning of year plus the
state capital at the end of year divided by (:) 2.
Article 32. Determination of
the equitized enterprise’s stakes in other enterprises
1. The stake that the equitized enterprise invests
in a single-member LLC 100% of capital of which is contributed by the equitized
enterprise shall be determined as follows:
a) The stake that the equitized enterprise invests
in the level II enterprise shall be have its value recalculated according to
provisions of Chapter II and Chapter III herein.
b) Where the level II enterprise has a stake in
another single-member LLC (hereinafter referred to as “level III enterprise”),
the stake of the level II enterprise in the level III enterprise shall be
determined according to provisions of Points a, b and c Clause 3 this Article.
c) Where the level II enterprise is an overseas
enterprise, the stake in such enterprise shall determined in accordance with in
Points a, b and c Clause 3 this Article.
The value of the equitized enterprise’s stakes in
overseas level II and level III enterprises shall be converted at the foreign
exchange buying rate quoted by the equitized enterprise’s regular commercial
bank on the date of enterprise valuation.
2. The stake that the equitized enterprise invested
in the JSC listed on the stock market shall be determined according to the
reference price of the share certificates offered on the stock market on the
date of enterprise valuation. If there is no transaction made on the date of
enterprise valuation, the stake shall be determined according to the reference
price of the transaction preceding the day on which the enterprise value is
determined.
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If the price on the stock market or on the UPCOM is
lower than the par value of VND 10,000 but the JSC having stake invested by the
equitized enterprise that operates profitably, the stake of the equitized
enterprise invested in the JSC shall be determine according to provisions of
Points a and b Clause 3 this Article.
3. The stake of the equitized enterprise invested
in other enterprise (except for the enterprises stated in Clause 1 and Clause 2
this Article) shall be determined on the basis of the rate of actual stake
multiplied (x) by the equity value of other enterprises as follows:
a) The rate of actual stake of the equitized
enterprise shall be the rate (%) of the actual stake invested by the equitized
enterprise over the total actual stake (the equity) of other enterprises;
b) The equity value of other enterprises shall be
determined according to financial statements audited on the date of determining
the equitized enterprise. If such financial statements have not been audited,
the equity value shall be determined according to unaudited financial
statements on the date of determining the equitized enterprise. If the
organization having stake invested by the equitized enterprise fails to make
the financial statement on the date of enterprise valuation, the equity value
shall be based on the financial statement made on the day preceding the day on
which the enterprise value is determined;
c) The stake that the equitized enterprise invested
in other enterprises when being reassessed or recalculated having the actual
value lower than that stated in accounting records of the equitized enterprise
shall be determined according to the actual value recalculated provided that it
is at least VND 0 (zero).
d) The conversion of the stake that the equitized
enterprise invested in the JSC or a multi-member LLC operating in a foreign
country shall be carried out according to the foreign exchange buying rate of
the commercial bank where the equitized enterprise regularly makes transactions
on the date of enterprise valuation.
Chapter IV
INITIAL OFFERING, MANAGE
AND USE OF REVENUE EARNED FROM EQUITIZATION
Article 33. Determination of
charter capital and first share structures
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a) If the state capital value stated in accounting
records of the enterprise higher than the charter capital used for the
enterprise operation, the representative authority shall determine the charter
capital in accordance with the actual needs. The difference between the state
capital value stated in accounting records of the enterprise and the determined
charter capital shall be transferred to the Enterprise Assistance and
Development Fund.
b) In case of additional issuance of shares, the
charter capital shall be determined according to the state capital value stated
in accounting records and value of additionally issued shares based on the par
value of share certificates.
2. According to the charter capital that has been
determined, the representative authority shall decide the first equity
structure including:
a) Shares held by the State in accordance with
state-owned enterprise classification criteria announced by the Prime Minister
in each period.
In case of special enterprises playing an important
part in economic development of areas and serving development strategy of
economy or state-owned economic groups, such as: seaport management and
operations or the cases where the State holds 36% of the charter capital and
other specific cases, the representative authority shall request the Prime
Minister to make a specific decision on the number of shares that the Stated
continue to hold and the number of preference shares voted in accordance with
provisions of Clause 3 Article 113 and Article 116 of the Law on Enterprises.
b) Shares offered to labor unions of the equitized enterprises.
The labor union of the equitized enterprise shall
be entitled to use its budget (according to Article 26 of the 2012 Law on Labor
union; not mobilizing or applying for loan) to purchase shares provided that
they are not exceeding 3% of the charter capital. Such shares shall be held by
the labor union provided that they are not be transferred within 3 years from
the date of equitization.
The selling price of shares offered to the labor
union of the equitized enterprise shall be VND 10,000 per share.
c) Shares offered to employees of the enterprise
stated in Clause 1 and Clause 2 Article 42 herein.
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dd) Shares offered at public auctions accounting
for at least 20% of the charter capital.
3. If the number of preference shares offered to
the enterprise employees (according to the maximum preference rate) is more
than the number of remaining shares estimated to offered (after deducted from
the number of shares held by the Stated and the number of shares offered to
investors or labor unions mentioned in Points a, b, d and dd Clause 2 this
Article) and the enterprise does not have shares governed by the State, the
representative authority shall consider reducing the number of shares held by
the State to increase the number of preference shares offered to employees.
Article 34. Public auctions
1. A public auction is available to all investors
whether they are organizations or individuals, domestic or foreign.
2. The public auction shall be held at the stock
exchange. If the par value of shares offered (by the equitized enterprise) is
under VND 10 billion, the representative authority may consider conducting the
auction at a securities company, an auction center or auctioneering enterprise
in accordance with regulations of law on asset auction.
3. The steering committee shall cooperate with the
stock exchange or the auctioneering organization in publishing information at
the enterprise, stock exchange, through mass media and on the Government’s
website at least 20 working days before the initial offering.
4. The selling price shall be the successful bid
offered by each investor. The investor shall be entitled to purchase shares at his/her
successful bid, provided it is not lower than the starting price.
Article 35. Underwriting
1. Underwriting means a guarantee provided by an
underwriter that the number of offered shares approved by a competent authority
will be distributed.
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If the shares are not completely sold, the
underwriter shall purchase the remaining shares at the agreed price under the
underwriting agreement provided that it is over or equal to the starting price.
2. Rights and obligations of the underwriter shall
be fulfilled according to regulations of law on securities and stock market and
underwriting agreement concluded between the underwriter and a competent
representative of the equitized enterprise.
Article 36. Direct negotiation
1. Direct negotiation means the method of offering
shares to investors through negotiation between the steering committee (or an
organization authorized by the steering committee) and each investor.
2. The selling price shall be agreed upon according
to provisions of Points d and e Clause 3 Article 6 and Clause 2 and Clause 4
Article 37 herein.
Article 37. Settlement of
unsold shares
1. If there is no investor subscribing for shares,
the steering committee shall offer shares to employees and labor union of the
enterprise according to the equitization plan approved and shall follow
procedures for converting the enterprise into the JSC. The number of stagnant
shares shall be readjusted according to the charter capital and its structure
and divested after the enterprise has been operating in the form of the JSC.
2. If there is only one investor subscribing for
shares, the steering committee shall reach an agreement on share offering with
such investor with the selling price over or equal to the starting price of the
number of shares legally subscribed. If the investor has no demand for
subscribing for shares, the equitized enterprise shall comply with the
provision of Clause 1 this Article.
3. If all investors having successful bids
(successful bidders) reject to subscribe for shares after the public auction is
held, the equitized enterprise shall comply with the provision of Clause 1 this
Article.
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a) The steering committee shall continue to inform
investors that have legally attended the auction (excluding successful bidders
in the public auction) of share offering to such investors in accordance with
the number of shares and price subscribed in the auction. Shares will be sold
to investors in order of their offered prices from highest to lowest.
a) The steering committee that fails to completely
sell all shares to investors after the agreement shall continue to inform successful
bidders (excluding those who reject to subscribe for shares) of the agreement
on offering such investors with the selling price subscribed at the auction.
Shares will be sold to investors in order of their offered prices from highest
to lowest.
c) The equitized enterprise shall deal with the
unsold shares mentioned in Points a and b this Clause in accordance with Clause
1 this Article.
Article 38. Time limit for
sale of shares
Shares shall be sold within 4 months from the
day on which the equitization plan is approved (by both underwriting and direct
negotiation).
Article 39. Management and use
of the revenue earned from equitization
1. Determination of the revenue earned from the
initial offering
a) Within 5 working days from the deadlines for payment
by the bidders, the auctioneering organization shall transfer the revenue
earned from the initial offering to the equitized enterprise in order to settle
redundancy policies and make payment for equitization expenses under the cost
estimate stated in the equitization plan approved by the competent authority;
the remainder shall be transferred to the Enterprise Assistance and Development
Fund.
b) Within 20 working days from the deadlines for
payment by the bidders, the steering committee shall direct the enterprise to
complete the sale of shares to the labor union and employees in accordance with
provisions stated herein and the equitization plan approved. The steering
committee shall direct the enterprise to transfer the revenue earned from the
sale of shares to the labor union and employees to the Enterprise Assistance
and Development Fund within 5 days from the deadlines for payment.
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d) Within 30 days from the deadlines for payment by
the bidders, the steering committee shall direct the enterprise to complete the
sale of shares by reaching an agreement with the strategic investor stated
herein. The equitization steering committee shall transfer the revenue earned
from such sale of shares to the Enterprise Assistance and Development Fund
within 5 days from the deadlines for payment.
dd) Within 30 days from the deadlines for payment
by the bidders, the steering committee shall direct the enterprise to cooperate
with the auctioneering organization to in completing the auction for the
strategic investor. The steering committee shall transfer the revenue earned
from such sale of shares to the Enterprise Assistance and Development Fund
within 5 days from the deadlines for payment.
e) Where the total revenue earned from the initial
offering mentioned in Points a, b, c, d or dd Clause 1 this Article is lower
than the estimate of expenses for redundancy policies and estimate of
equitization expenses stated in the approved equitization plan, the equitized
enterprise shall retain all of such revenue to pay for other expenses under the
approved estimate and make official statements from the day on which the
enterprise obtains the certification of first registration of JSC.
2. Determination of the revenue earned from sale of
shares on the date of equitization
a) Within 90 days from the date of obtaining the
certification of first registration of JSC, the enterprise shall determine the
payables to the Enterprise Assistance and Development Fund according to the
financial statement on such date to operate in the form of the JSC and guidance
on settlement of financial issues on the date of converting into the JSC stated
in Article 21 herein. The amounts retained at the enterprise include:
- The value equivalent to the number of additional
shares offered under the par value.
- The extra capital from additional shares shall be
used to make payment for equitization expenses and settle redundancy policies
(or handled according to the provision of Point d this Clause if inadequate);
the remaining amount of money (if any) shall be transferred to the JSC under
the rate equivalent to additional shares offered in the charter capital
structure, where:
Extra capital from
additional shares
=
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x
Successful bid
-
Starting price
b) Within 5 working days from the day on which the decision
on the contents stated in Clause 4 Article 21 herein is given by the
representative authority, the enterprise shall continue to transfer the
difference in the amount transferred that is determined under Point a Clause 2
this Article (if any) to the Enterprise Assistance and Development Fund.
c) If the amount transferred to the Enterprise
Assistance and Development Fund stated in the terminal statement made by the
representative authority is under the amount determined and transferred by the
enterprise as mentioned in Point a Clause 2 this Article, the enterprise shall
make an official dispatch to request the Ministry of Finance to refund the
amount transferred by the enterprise. According to the official dispatch made
by the enterprise and documents stated in regulations on management and use of
the Enterprise Assistance and Development Fund, the Ministry of Finance shall
decide to refund the enterprise within 10 working days.
d) According to the IPO results, if the net revenue
earned from offering of preference shares to employees, labor union, the
strategic investor and other investors fails to offset relevant expenses
(including equitization expenses, expenses for redundancy policies and
incentives for employees) under the terminal statement approved by a competent
authority, the representative authority shall consider reducing the state
capital contributed in the JSC (if the JSC still remain the state capital),
charter capital and its structure of the JSC to meet actual needs through the
General meeting of shareholders. If there is no state capital after the
adjustment, the enterprise shall request the representative authority and the
Ministry of Finance to extract the Enterprise Assistance and Development Fund
to refund the enterprise the inadequate amount stated in Point c this Clause.
3. After the time limits mentioned in Clause 1 and
Clause 2 this Article, if the auctioneering organization and enterprise fail to
transfer money to the Enterprise Assistance and Development Fund, they shall
bear the interest according to the mechanism for management and use of such
fund. Such interest shall not be added to reasonable expenses when calculating
corporate income tax and use the profit after tax to offset after deducting
from compensation and relevant board of members, board of directors and
entities shall take responsibilities for the interest (if any).
4. The Prime Minister shall decide the mechanism
for management and use of the Enterprise Assistance and Development Fund. The
Ministry of Finance shall organize the management of the Enterprise Assistance
and Development Fund in accordance with the mechanism regulated by the Prime
Minister.
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Article 40. Charter of the JSC
1. The steering committee shall direct the
enterprise to cooperate with the consulting firm providing equitization
services in drawing up and publishing the charter of JSC to investors before
offering shares. The draft of the charter of JSC shall not be against
provisions of the Law on Enterprises and regulations of relevant law.
2. The charter of JSC shall be adopted by the first
General meeting of shareholders when there are at least 65% of the total votes
approved by investors participating in the meeting and contributing capital to
subscribe for shares.
Article 41. First General
meeting of shareholders and enterprise registration
1. Within 30 working days from the expiration of
the time limit for selling shares, the equitized enterprise shall hold the
first General meeting of shareholders to convert the enterprise into the JSC
and apply for enterprise registration in accordance with regulations of law.
2. The application for enterprise registration
shall include the decision on conversion into the JSC made by a competent
authority, decision on appointment of the state capital representative of the
JSC made by the representative authority (if any) and the charter of JSC with
the legal representative’s signature of the JSC.
Chapter V
EMPLOYEE POLICIES WHEN
ENTERPRISES ARE EQUITIZED
Article 42. Policies on
offering shares to employees
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a) People eligible to buy discounted shares
include:
- Employees working under labor contracts and
managers of equitized enterprises on the date of enterprise valuation.
- Employees working for equitized enterprises on
the date of enterprise valuation and appointed to be representatives of capital
in other enterprises that have not been eligible to purchase preference shares
from other enterprises.
- Employees working under labor contracts and
managers of level II enterprises that have not been eligible to purchase
preference shares from other enterprises on the date of enterprise valuation in
case of the enterprises mentioned in Point a Clause 2 Article 2 herein.
b) The individuals mentioned in Point a Clause 1
this Article shall be entitled to purchase up to 100 shares for each year
working in state sectors with the selling price equal to 60% of the share value
which is VND 10,000 per share.
c) An employee that represents a household business
to receive fix funding on the date of enterprise valuation and has reached a
long-term agreement on receiving fix funding with an agricultural or forestry
company when converting into the JSC shall be entitled to purchase 100 shares
for each year receiving fix funding with the selling price equal to 60% of the
share value which is VND 10,000 per share.
d) The difference between the selling price offered
to the employee and the par value of share stated in Clause 1 this Article
shall be deducted from the state capital value when making statements on the
official date of equitization.
dd) The employee shall hold the number of
preference shares stated herein and shall not transfer it within 3 years from
the day on which preference shares are subscribed.
2. From the date of enterprise valuation, the
employee working under the labor contract and the manager of the equitized
enterprise that have committed to work for the enterprise for at least 3 years
(from the date of obtaining the certification of first registration of JSC)
shall be entitled to purchase additional shares as follows:
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The employee that is a qualified expert shall be
entitled to purchase 500 shares per year but not exceeding 5,000 shares. The
equitized enterprise, according to characteristics of its business lines, shall
develop and decide criteria for determining qualified experts that are agreed
upon by the employee conference of the enterprise before carrying out
equitization.
b) The selling price for the employee that wishes
to purchase additional shares mentioned in Point a this Clause shall be the
starting price approved by the representative authority through the
equitization plan.
c) Each employee shall only be entitled to purchase
additional shares according to the specific number of shares mentioned in Point
a this Clause.
d) The number of additional shares that the
employee purchases stated in Point a Clause 2 this Article shall be converted
into common shares after the commitment term expires.
In the cases where the JSC changes structures,
technology, relocate or narrow factories or stores upon request of a competent
state authority that makes the employee terminate the labor contract, quit or
lose his/her job according to provisions of the Labor Code before the committed
term, the number of additional shares purchased shall be converted into common
shares. If the employee wishes to resell the number of such shares to the
enterprise, the JSC shall acquire it with the price close to the selling price
on the market.
The employee that terminates the labor contract
before the committed term shall resell the entire number of additional shares
purchased to the JSC with the price close to the selling price on the market
provided that it does not exceed the price on the date of carrying out equitization.
3. The employee carrying out restructuring to
convert the enterprise into the JSC through the DATC stated in Clause 2 Article
4 herein shall apply to the policies mentioned in Clause 1 and Clause 2 this
Article in accordance with specific conditions of the enterprise and the
equitization plan approved by the competent authority.
4. The employee wishing to purchase additional
shares apart from the shares purchased stated in Clause 1 and Clause 2 this
Article shall subscribe shares from auctions in accordance with regulations as
same as those applied to other investors.
Article 43. Redundancy
policies
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2. The representative authority shall consider
arranging a job for the enterprise manager. If the representative authority
fails to provide a job vacancy, the redundant employee shall be entitled to
enjoy redundancy policies applied to officials.
3. The board of members or the chairperson of the
state-owned enterprise shall consider providing job vacancies for the level II
enterprise manager stated in Clause 2 Article 2 herein or carry out policies in
accordance with regulations of law on labor if it fails to provide a job
vacancy for the redundant employee.
Chapter VI
IMPLEMENTATION
Article 44. Conversion from
wholly state-owned single-member LLCs into JSCs
1. The board of members of chairperson of the
state-owned enterprise stated in Clause 2 Article 2 shall comply with
provisions of this Decree to convert the level II enterprise into the JSC.
2. From the date of enterprise valuation, redundant
assets that have not been disposed of, except for the assets that shall not be
excluded from the enterprise value mentioned in Clause 3 Article 14 herein, the
level II enterprise shall aggregate the remaining value stated in books of such
assets with business expenses of the enterprise and transfer such assets to the
parent company in order to continue the management and liquidation or sale of
such assets. The parent company shall aggregate the proceeds earned from
liquidation or sale of assets with the company’s income.
3. On the basis of the enterprise value for
equitization that has been determined by the consulting firm and comments of
the representative authority, the State Audit Office of Vietnam shall audit the
enterprise value and settle financial issues before carrying out assessment for
the level II enterprise having equity stated in accounting records on the date
of enterprise valuation of at least VND 1,800 billion.
4. The revenue earned from offering shares of the
level II enterprise shall be stated in the terminal statement approved by a
competent authority after deducting the prime cost (value stated in books) of
the number of offered shares, equitization expenses, expenses for redundancy
policies, incentives for employees or tax obligations (if any), the remaining
amount shall be transferred to the Enterprise Assistance and Development Fund
within 5 working days from the day on which a decision made by the competent
authority is given.
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Article 45. Rights and
responsibilities when carrying out equitization
1. The Prime Minister shall:
a) Adopt the list of enterprises mentioned in
Clause 2 and Clause 3 Article 2 herein to convert into JSCs.
b) Make decisions on approval for equitization
plans for economic groups, state corporations or enterprises having state
capital stated in accounting records of at least VND 1,800 billion and level II
enterprises having equity stated in accounting records of at least VND 1,800
billion.
c) Select representative authorities of state
capital after equitization carried out in the organizations mentioned in Point
b Clause 1 this Article apart from level II enterprises.
d) Consider and handle particular problems or
contents arising in the course of equitization carried out in each enterprise
that has not been specified herein at the request of representative
authorities.
2. The representative authority, according to the
list of equitized enterprises approved by the Prime Minister, shall:
a) Set up steering committees to assist
representative authorities in carrying out equitization stated herein.
Set up steering committees to assist the Prime
Minister in carrying out equitization for the organizations mentioned in Point
b Clause 1 this Article.
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c) Select equitization consulting firms, choose
auctioneering organizations, publish the enterprise value and request the Prime
Minister to adopt equitization plans for the organizations mentioned in Point b
Clause 1 this Article.
d) Select equitization consulting firms, choose
auctioneering organizations; publish the enterprise value and make decisions on
equitization plans for enterprises under their management and drafts of
charters of JSCs developed in accordance with provisions of the Law on
Enterprises and regulations of relevant law.
dd) Make decisions on approval for debt sale plans
to restructure enterprises and equitization plans for enterprises sustaining
losses after reaching agreements with the DATC and creditors of enterprises on
debt sale plans to restructure enterprises stated in Clause 2 Article 4 herein.
Time limit for completing approval for debt sale
plans to restructure enterprises or equitization plans for enterprises
sustaining losses stated in Clause 2 Article 4 herein shall be 3 months from the
date of publishing the enterprise value.
e) Adjust the state capital for JSCs; transfer
surplus assets (if any) to the DATC according to the provision of Clause 4
Article 10 herein.
g) Make decisions on approval for plans to manage
employees and settle redundancy policies for equitized enterprises.
h) Within the time limit stated in Clause 4 Article
21 herein, representative authorities shall cooperate with relevant authorities
in approving financial statements; terminal statements on equitization expenses,
expenses for redundancy policies; the revenue earned from equitization and
publishing the actual state capital value from the date of obtaining the
certification of first registration of JSC (including the organizations
mentioned in Point b Clause 1 this Article).
i) Settle complaints at equitized enterprises
within their competence.
k) Direct equitized enterprises to follow
procedures for depository or registration of shares of the successful bid at
the Vietnam Securities Depository and transaction registration at stock
exchanges.
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m) Make decisions on approval for criteria and
selection of strategic investors for enterprises offering shares to strategic
investors including enterprises stated in Point b Clause 1 this Article.
3. The board of members or chairperson of a
state-owned enterprise mentioned in Clause 2 Article 2 herein shall:
a) Implement plans for equitization of level II
enterprises on the list of equitized enterprises approved by the Prime
Minister.
b) Set up a steering committee to assist the board
of members/chairperson of the enterprise in carrying out equitization of level
II enterprises, apart from the organizations mentioned in Point b Clause 1 this
Article.
c) Select consulting firms or auctioneering
organizations to settle financial issues, publish the enterprise value, approve
equitization plans, adopt employee use plans; make decision on approval for
financial statements; terminal statements on equitization expenses, expenses
for redundancy policies and revenue earned from equitization; and publishing
the actual state capital value from the date of obtaining the certification of
first registration of JSC of level II enterprises stated herein, except for the
organizations mentioned in Point b Clause 1 this Article.
d) Provide guidance, carry out inspections and
supervision of the equitization of organizations under their management in
accordance with this Decree.
dd) Make decisions on approval for criteria and
selection of strategic investors for level II enterprises offering shares to
strategic investors, excluding the enterprises stated in Point b Clause 1 this
Article.
4. Rights, responsibilities and members of steering
committees:
a) Rights and responsibilities of the steering
committee:
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- Use the seal of the representative authority when
performing tasks.
- Set up the assistance team to carry out
equitization for the enterprise.
- According to the approved equitization plan, the
steering committee shall direct the enterprise to:
+ Prepare legal documents on the enterprise’s
property (including housing and land); land use plan after equitization; carry
out stocktaking and verify debts on the date of making financial statements.
+ Prepare the equitization schedule (including time
marks for each task) to request the representative authority for approval. The
steering committee of the enterprise that fails to meet such schedule shall be
considered not fulfilling tasks.
- Direct to handle financial or personnel problems
and determine the enterprise value according to provisions stated herein.
- Request the representative authority to select
methods of initial offering.
- Direct to develop the equitization plan and the
first draft of the charter of JSC.
- Direct to develop the plan for managing employees
to request the representative authority (for the state-owned enterprise) or the
board of members/chairperson of the state-owned enterprise (for the level II
enterprise) in carrying out equitization for the level II enterprises, apart
from the organizations mentioned in Point b Clause 1 this Article) for
approval.
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- Direct the equitized enterprise to cooperate with
auctioneering organizations in conducting auctions of shares.
- Direct the equitized enterprise to determine the
revenue earned from equitization in accordance with the form of equitization of
the enterprise, make terminal statements (financial statements made on the
official date of equitization, terminal statements on equitization expenses,
expenses for redundancy policies, incentives for employees and the labor union)
in order to request a competent authority for approval.
- Consolidate and report results of offering shares
to the representative authority.
- Consolidate and request the representative
authority to adjust the equitization plan or the enterprise value after the
enterprise is converted into the JSC.
- Cooperate with relevant authorities in verifying
and requesting the representative authority to approve financial statements;
terminal statements on equitization expenses, expenses for redundancy policies
or revenue earned from equitization; and publishing the actual state capital
value from the day on which the JSC obtains the certification of first
registration of JSC.
- Consider and request the representative authority
to appoint a representative of state capital at the equitized enterprise.
- Direct the equitized enterprise to publish
promptly and fully the equitization process on the Government’s website and
send it to the Ministry of Finance and the steering committee of enterprise reform
and development.
b) The steering committee shall be decided by
ministers, heads of ministerial and governmental authorities, Chairpersons of
provincial People’s Committees or boards of members of parent companies.
In case of the organizations mentioned in Point b
Clause 1 this Article, the steering committee shall have the steering committee
of enterprise reform and development and the Ministry of Finance.
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a) Disseminate and mobilize officials and public
employees of the equitized enterprise to follow equitization policies of the
State.
b) Supervise the equitization process.
c) Appoint a representative of the labor union
capital to self-nominate to the board of directors or board of supervisors of
the JSC.
d) Use the labor union fund to purchase shares from
the enterprise, manage the enterprise as a shareholder and protect benefits of
employees working for the enterprise.
Article 46. Reporting
Ministers, heads of ministerial and governmental
authorities, Chairpersons of provincial People’s Committees, boards of
members/chairpersons of parent companies shall promptly report to the steering
committee of enterprise reform and development and the Ministry of Finance
relevant contents in the course of equitization such as: results of settling
financial issues, enterprise value, publishing of the enterprise value and
adjustment thereof, equitization plans, results of offering shares, terminal
statements on equitization expenses, terminal statements on conversion into
JSCs and violations committed by consulting firms in the equitization process
(if any) and direct equitized enterprises to publish promptly and fully the
contents mentioned in Clause 1 Article 11 herein.
Article 47. Equitization
procedures
Equitization shall follow the procedures provided
in Appendix II attached hereto including the following basic steps:
1. Developing the equitization plan
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b) Prepare relevant documents (including the land
use plan approved by the competent authority).
c) Carry out stocktaking, settle financial issues
and determine the enterprise value.
d) Make decisions on and publish the enterprise
value.
dd) Complete the equitization plan to request a
competent authority for approval.
2. Implementing the equitization plan
3. Finalizing the equitization.
a) Hold the first General meeting of shareholders
and register the enterprise.
b) Make financial statements and convert to the
JSC.
Chapter VII
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Article 48. Transitional
provisions
1. The enterprise whose decision on publishing the
enterprise value is given but the equitization plan has not been approved
before the effective date of this Decree shall develop the equitization plan
and implement it under provisions stated herein. The enterprise mentioned in
Clause 1 Article 26 herein shall carry out state audit and readjust the
published enterprise value if there is any difference arising.
2. The enterprise whose decision on equitization
plan has been approved by a competent authority before the effective date of
this Decree shall continue to implement such plan. Financial handling and
terminal statements on the revenue earned from equitization on the date of
obtaining the certification of first registration of JSC shall comply with
provisions stated herein.
3. The enterprise that has been equitized before
the effective date of the Government’s Decree No. 59/2011/ND-CP dated July 18,
2011 shall report any issues arising while deducting the advantage value of
points from the annual land rent to the Prime Minister.
4. The enterprise whose plan for offering shares to
strategic investors has been approved by a competent authority before the effective
date of this Decree shall continue to implement such plan. In case of the
remaining shares (difference between the number of actual shares offered to the
strategic investor and the total number of shares expected to offer thereto
according to the approved equitization plan), the representative authority
shall adjust and restructure charter capital and before the first General
meeting of shareholders is held to continue transferring capital in accordance
with regulations of law on transfer of state capital to JSCs.
5. The equitized enterprise that has been converted
into the form of a JSC before the effective date of this Decree shall not
comply with provisions stated herein.
Within 90 working days from the effective date of
this Decree, the representative authority shall cooperate with relevant
authorities in settling financial issues or approving financial statements;
terminal statements on equitization expenses, expenses for redundancy policies
or the revenue earned from equitization; publishing the actual state capital
value from the day on which the JSC obtains the certification of first
registration of JSC and directing transfer to the JSC according to the Decree
No. 59/2011/ND-CP dated July 18, 2011, Decree No. 189/2013/ND-CP dated November
20, 2013 and the Decree No. 116/2015/ND-CP dated November 11, 2015 by the
Government.
6. The enterprises mentioned in Clause 1 and Clause
2 this Article whose plans for land use have not been approved by a competent
authority stated in provisions of the Government’s Decree No. 01/2007/ND-CP
dated January 06, 2017 on amendments to certain decrees specifying
implementation of the Land Law shall have their plans for land use approved
before the day on which the JSC obtains the certification of first registration
of JSC.
The representative authority shall cooperate with
the provincial People’s Committee where land area is requested for allocating
or leasing by the enterprise in directing the enterprise and law enforcement
authorities to consider approving the plan for land use made by the equitized
enterprise.
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Article 49. Implementation
provisions
1. This Decree comes into force from January 01,
2018 and replaces the Government’s Decree No. 59/2011/ND-CP dated July 18, 2011
on conversion from wholly state-owned enterprises into JSCs; Decree No.
189/2013/ND-CP dated November 20, 2013 and Decree No. 116/2015/ND-CP dated
November 11, 2015 by the Government on amendments to certain articles of the
Decree No. 59/2011/ND-CP. The previous regulations on equitization against
provisions stated herein shall be invalidated.
2. Single-member LLCs with 100% of charter capital
held by socio-economic organizations or socio-political organizations
established and operating in accordance with the Law on Enterprises shall
comply with provisions stated herein to convert into JSCs.
Article 50. Responsibility for
implementation
1. Ministry of Finance, Ministry of Labor - War
Invalids and Social Affairs, Ministry of Natural Resources and Environment,
Ministry of Planning and Investment; State Bank of Vietnam; Vietnam Social
Security; State Audit Office of Vietnam and relevant authorities shall provide
guidance on implementation of this Decree within their competence.
2. Ministers, heads of ministerial and governmental
authorities, Chairpersons of provincial People’s Committees, boards of members
of economic groups and corporations established by the Prime Minister’s
decision shall implement this Decree.
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APPENDIX I
PROCEDURES FOR SELECTING STRATEGIC INVESTORS FOR
EQUITIZED ENTERPRISES
(Attached to the Government’s Decree No. 126/2017/ND-CP dated November 16,
2017)
Procedures for selecting a strategic investor for
the equitized enterprise include the following steps:
Step 1. According to the scale of charter
capital, nature of business lines and requirements for enterprise expansion and
development, the steering committee of the assistance team shall cooperate with
the enterprise and a consulting firm (if any) in developing selection criteria,
rate of shares offered and target of offering shares to the strategic investor
to add to the equitization plan.
If the equitized enterprise is on the list of
conditional business lines specified in regulations of law on investment,
requirements for selecting whether the strategic investor has the same business
lines shall be considered when developing selection criteria.
Step 2. The steering committee shall assess
procedures for sale of shares for the strategic investor to request the
representative authority to approve the equitization plan (specifying selection
criteria, rate of sale and selling prices for the strategic investor).
Step 3. Within 5 working days from the day
on which the representative authority approves the equitization plan, the
equitized enterprise shall publish through mass media (both in English and
Vietnamese) contents related to offering shares for the strategic investor of
the equitized enterprise including:
- Enterprise introduction;
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- Criteria for selecting the strategic investor;
- Rate of shares offered to the strategic investor;
- Rights and obligations of the strategic investor
of the equitized enterprise (stated in Article 6 herein);
- Application for becoming the strategic investor;
- Time and place for submitting the application.
Step 4. Within 20 days from the day on which
the notification is given, the equitized enterprise shall review the
application for becoming the strategic investor and consolidate the list of strategic
investors eligible for purchasing shares and request the steering committee and
the representative authority for approval. The equitized enterprise shall
inform strategic investors so that they make plans for studying and consulting
contents related to business and finance, etc. of the enterprise.
Selection of strategic investors eligible for
purchasing shares shall be made before the auction of IPO is held.
Step 5. On the basis of the list of
strategic investors approved by the representative authority, the steering
committee shall develop the selling plan and offer shares for strategic
investors in accordance with the contents mentioned in Clause 3 Article 6
herein.
Step 6. According to the results of
consolidation of shares offered to strategic investors, the equitized
enterprise shall consolidate and request the representative authority to
consider concluding an official commitment agreement with strategic investors
that have won the bid and transfer revenue earned from offering shares to strategic
investors to the Enterprise Assistance and Development Fund mentioned in
Article 39 herein.
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APPENDIX II
PROCEDURES FOR CONVERTING FROM STATE-OWNED
ENTERPRISES INTO JOINT-STOCK COMPANIES
(Attached to the Government’s Decree No. 126/2017/ND-CP dated November 16,
2017)
Procedures for converting from the state-owned
enterprise into the JSC include the following steps:
Step 1. Developing the equitization plan
1. Establishment of the steering committee and
assistance team.
a) According to the equitization plan on the list
of state-owned enterprise management approved by the Prime Minister, the
representative authority shall equitize the decision on establishing the
steering committee and plan and roadmap to carry out the equitization.
b) The head of steering committee shall select and
make a decision on establishing the equitization assistance team within 5
working days from the day on which the decision on establishing the steering
committee is given.
2. Preparation of documents.
The steering committee shall direct the assistance
team to cooperate with the enterprise in preparing the following documents:
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- Legal documents on assets, sources of capital and
debts of the enterprise.
- Financial statements and terminal tax statements
of the enterprise on the date of enterprise valuation.
- Estimate of equitization expenses.
- Plan for using the land managed by the enterprise
in accordance with regulations of law on land, rearrangement and disposal of
housing or land under state ownership in each period approved by the competent
state authority.
- List and plan for managing employees working for
the enterprise.
- Methods, options for methods of and time for
determining the enterprise value satisfying requirements for the enterprise and
physical guidance related to equitization.
3. The steering committee shall direct the
assistance team to cooperate with the enterprise in preparing for relevant
documents to request the representative authority for approval for estimate of
equitization expenses or select equitization consulting services.
4. Stocktaking, financial handling and
determination of the enterprise value.
The enterprise shall cooperate with the consulting
firm in:
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b) sending the land use plan approved and all
relevant documents to the provincial People’s Committee to ask for land prices
as the basis for determination of the enterprise value;
c) determining the enterprise value.
The steering committee shall direct the assistance team
to cooperate with the enterprise and consulting firm in determining the
enterprise value. The consulting firm providing assessment services may be
hired to provide lump-sum services including the equitization plan,
determination of the enterprise value and offering shares.
5. Decisions on and publishing of the enterprise
value.
The steering committee shall assess results of
stocktaking, classification of property and the enterprise value and request
the representative authority to make a decision on publishing the enterprise
value.
In case of the enterprises mentioned in Clause 1
Article 26 herein, the steering committee shall request the representative
authority to decide the enterprise value and send documents and application to
the State Audit Office of Vietnam to audit the enterprise value and settle
financial issues before officially publishing the equitized enterprise value.
The decision on publishing the enterprise value
shall specify amounts of debts and assets excluded when determining the enterprise
value t to transfer to the DATC stated in Clause 2 Article 14, Clause 2 and
Clause 3 Article 15 this Decree.
6. Completion of the equitization plan to request a
competent authority for approval.
a) According to the decision on publishing the
equitized enterprise value and actual situation of the enterprise, the steering
committee shall direct the assistance team to cooperate with the enterprise and
consulting firm in determining the enterprise value. The equitization plan
shall include the following contents:
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- The enterprise
value and issues that need settling.
- Form of equitization and charter capital upon
business requirements of the JSC.
- Structure of charter capital, starting price and
methods of offering shares.
- Draft of the charter of organization and
operation of the JSC under regulations of the Law on Enterprises and applicable
legal documents.
- Plan for rearrangement of employees approved by
the representative authority.
- Plan for business operation in 3 – 5 succeeding
years.
- Land use plan approved by the competent
authority.
b) The steering committee shall direct the
assistance team and the enterprise to cooperate with the consulting firm in
making the equitization plan publicly available and send it to each division of
the enterprise to study before an (extraordinary) employee conference is held.
After the employee conference, the assistance team
and the enterprise shall cooperate with the consulting firm in completing the
equitization plan to request the representative authority for approval.
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If the enterprise has the actual enterprise value
lower than the payables stated in Clause 2 Article 4 herein, the representative
authority shall direct the steering committee and the enterprise to cooperate
with the DATC and creditors of the enterprise in developing a plan for restructuring
the enterprise. The representative authority shall approve the plan for
restructuring the enterprise to convert the enterprise into the JSC according
to efficiency and feasibility of such plan.
Step 2. Implementation of the equitization plan
1. The steering committee shall direct the
enterprise to cooperate with intermediate consulting firms in offering shares
under the equitization plan approved and stated herein.
2. The steering committee shall direct the
enterprise to offer preference shares for employees and the labor union of the
enterprise (if any) under the approved plan.
3. According to results of consolidation of shares
offered to entities stated in the equitization plan, the steering committee
shall direct the enterprise to transfer the revenue earned from equitization to
the enterprise fund.
If the shares are not completely sold to intended
buyers specified in the approved equitization plan, the steering committee
shall request the representative authority that has approved the equitization
plan to adjust the scale and structure of shares of the equitized enterprise.
4. The steering committee shall request the
representative authority to appoint a representative of the capital of the
equitized enterprise having state capital to continue engaging in the JSC and
take responsibility for executing rights and fulfill obligations of the
representative authority of state capital.
Step 3. Finalizing the equitization
1. Holding the first General meeting of
shareholders and enterprise registration.
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b) The board of directors of the JSC shall apply
for enterprise registration in accordance with results of the first General
meeting of shareholders.
2. Making terminal statements and transfer between
the enterprise and the JSC.
a) Within 90 days from the date of obtaining the
certification of first registration of JSC, the steering committee shall direct
the assistance team and the enterprise to make financial statements from the
day on which the JSC obtains the certification of first registration of JSC,
make terminal tax statements, audit financial statements, make terminal
statements on equitization expenses and report to the representative authority.
b) According to results of redetermination of the
state capital value on the date of enterprise registration of the
representative authority, the steering committee shall direct the assistance
team and the enterprise to convert from the enterprise to the JSC.
c) The JSC shall be launched and published through
mass media.
In the course of implementation, the authority
deciding equitization, steering committee, assistance team and the enterprise
may take multiple steps in order to accelerate the progress of enterprise
equitization.