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PRIME MINISTER
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 41/2015/QD-TTg
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Hanoi, September
15, 2015
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DECISION
SELLING SHARES IN
BLOCKS
Pursuant to the Law on Government organization
dated December 25, 2001;
Pursuant to the Law on management and investment
of state capital in enterprises dated November 26, 2014;
Pursuant to the Government’s Resolution No.
40/NQ-CP dated June 01, 2015;
At the request of the Minister of Finance
The Prime Minister promulgates a Decision on
selling shares in blocks.
Chapter I
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Article 1. Scope
This Decision deals with withdrawal of state
capital of unlisted public companies from joint-stock companies that have not
been listed or registered on Upcom (Hanoi Stock Exchange), the ownership of
which is represented by Ministries, ministerial agencies, Governmental agencies
, (hereinafter referred to as regulatory Ministries), People’s Committees of
central-affiliated cities and provinces (hereinafter referred to as provinces),
state-owned corporations, and companies whose 100% charter capital is held by
the State (hereinafter referred to as wholly state-owned companies).
Article 2. Regulated entities
This Decision applies to:
1. Equitized enterprises in which investment must
be withdrawn.
2. Owners of state capital invested in joint-stock
companies (regulatory Ministries and the People’s Committees of provinces), and
authorized representatives of state capital invested in other enterprises
(hereinafter referred to as representatives) who withdraw state capital from
joint-stock companies that are not listed or registered on Upcom (hereinafter
referred to as unlisted joint-stock companies).
3. The Board of members of state-owned
corporations, companies or presidents of companies 100% charter capital of
which is held by the State (hereinafter referred to as wholly state-owned
companies), authorized representatives of capital invested by state-owned
corporations and companies in other enterprises when capital is withdrawn from
unlisted joint-stock companies.
4. State-owned corporations and enterprises that
decide to transfer their right to represent the state capital owner after they
are equitized into State Capital and Investment Corporation are not regulated
by this Decision.
Article 3. Interpretation of terms
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2. “Deposit” means an amount paid in advance by the
investor to secure the right to buy shares.
3. “IPO” means initial public offering.
4. “Unsuccessful auction” means an auction in which
no investor buys shares (because the investor violate auction rules or the
successful investor refuses to buy shares)
5. “Unsuccessful competitive offering” means an
auction in which no investor buys shares (because the investor violates auction
rules or the successful investor refuses to buy shares or the investors offer the
same price).
Chapter II
SPECIFIC PROVISIONS
Article 4. General rules
1. The sale of shares in blocks prescribed in this
Decision and relevant regulations on withdrawal of state capital must be
transparent and conformable with the charters of state-invested joint-stock
companies.
2. The sale of shares in blocks must be put up at
auction via the Stock Exchange under a plan approved by a competent authority
as prescribed in Article 5 of this Decision. The plan for selling shares in
blocks must contain the following information: quantity of blocks of shares to
be sold at auction; quantity of shares of each block; starting price,
requirements for participation in the auction; contingency plan in case the
auction is unsuccessful.
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4. Shares may be divided into multiple blocks to be
sold at auction depending on the quantity of shares and market development.
However, only one block of shares shall be sold in an auction. The quantity of
shares in a block must be at least 5% of charter capital of the joint-stock
company prescribed in Article 1 of this Decision.
5. In case of selling without auction (without the
Stock Exchange), the Prime Minister’s decision shall apply.
6. Shares shall be sold to strategic shareholders
of IPO enterprises in the following cases:
- When selling shares to strategic shareholders
under an approved equitization plan within 12 months from the equitization
date, the approved equitization plan or decision of to approve the equitization
plan issued by a competent authority shall apply.
- When selling share to strategic shareholders
after 12 months from the date of equitization, regulations on capital
withdrawal shall apply.
- When selling shares to strategic shareholders
under another plan, the Prime Minister’s decision shall apply.
Article 5. The power to approve the plan for
selling shares in blocks
Regulatory ministries and the People’s Committees
of provinces shall consider approving the plans for selling shares in blocks in
the joint-stock companies they represent the owner of which after consulting
with the Ministry of Finance and the Ministry of Planning and Investment;
approving the plans for capital withdrawal of state-owned corporations and
companies from other enterprises.
The Board of members of state-owned corporations,
companies or presidents of companies shall decide the sale of shares of
joint-stock companies they represent owner of which in blocks under the
approved plan.
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Article 6. Buyers and conditions for buying
shares in blocks
1. Vietnamese, foreign organizations and
individuals are entitled to buy shares in blocks. Vietnamese and foreign
investors may buy an unlimited quantity of shares if regulations of law and the
international agreements to which the Socialist Republic of Vietnam is a
signatory prescribe a maximum ratio of investment by foreign investors, such
regulations shall apply.
2. Investors buying shares in blocks must be
financially capable; commit themselves to the enterprise’s interest; have plans
for keep existing employees; support the enterprise in expanding its market,
improving its capacity in terms of finance, business administration, transfer
and application of new technologies, training; improve the enterprise’s
business efficiency and competitiveness.
3. According to Clause 2 of this Article, the
representative shall establish criteria for selecting investors eligible to buy
shares in blocks at auction and submit a report to the owner to formulate a
plan for selling shares in blocks, which will be submitted to a competent
authority for approval.
Article 7. Rights and obligations of investors
1. Request relevant documents and reports; survey
the business performance of the enterprise to decide whether to buy shares in
blocks.
2. After shares are bought and the investor becomes
a shareholder of the enterprise, he/she must perform the rights and obligations
of shareholders according to applicable regulations of law, adhere to the
commitment and support the enterprise in accordance with the criteria for
selection of eligible buyers. The investor that fails to adhere to commitment
and causes damage for the enterprise shall pay compensation according to
applicable regulations of law.
Article 8. Determination of starting price and
holding auction to sell shares in blocks
1. The starting price of the block of shares equals
(=) the starting price of a share multiplied by (x) the quantity of shares in a
block.
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3. According to the Decision to approve the plan
for selling shares in blocks issued by a competent authority and regulations on
selling shares in blocks, the owner’s representative agency, the Chairperson of
the Board of members, the President of the enterprise shall request the
representative to cooperate with Stock Exchange in formulating the enterprise’s
own statute on selling shares in blocks. Information shall be published for at
least 20 days.
4. The sale of shares in blocks shall be held in
accordance with the statute on selling shares in blocks at auctions prescribed
in Clause 3 of this Article.
Article 9. Procedures for selling shares in
blocks
The sale of shares in blocks shall comply with
Point c Clause 2 Article 39 of the Law on management and investment of state
capital in enterprises. To be specific:
1. Shares shall be sold in blocks at auction as
prescribed in Article 4 of this Decision. The investor who offers the highest
price at the auction is the successful investor. If multiple investors offer
the same price for a block of share, a competitive offering in the form of
ballot shall be held among such investors. In this case, the starting price
will be the initially offered price and the investor who offers the highest
price will be the successful investor.
In case the competitive offer is not successful
(because the investors offer the same price), Clause 2 of this Clause shall
apply.
2. In case there is only one investor registers to
buy shares, competitive offering is not successful, or the Prime Minister
grants a written permission, shares shall be sold under a direct agreement with
the investor.
The sales of shares under direct agreement with the
investor must comply with the following regulations:
- With regard to parent companies - corporations:
The owner’s representative agencies shall request the Prime Minister to
consider approving the sale of shares under direct agreements with investors.
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- With regard to other enterprises: the owner’s
representative shall decide the sale of share under direct agreements with
investors. When deciding the sale of shares under a direct agreement with the
investor, the owner’s representative agency is legally responsible for its decision
and must comply with the following principle: The person who has the power to
decide capital transfer must not decide the transfer of capital to another
enterprise whose manager is his/her spouse, birth parent, adoptive parent,
birth child, adopted child, sibling, son-in-law, or daughter-in-law; and must
not decide the transfer of capital to any of the aforementioned persons.
- In case the competitive offer is not successful
because the investors offer the same price, the quantity of shares in the block
shall be evenly divided to be sold to the investors. The power to decide the
sale of shares in this case shall comply with this Clause.
3. In case the successful investor refuses to pay
for the shares, the deposit shall not be returned.
Article 10. Management of proceeds from selling
shares in blocks
Proceeds from selling shares in blocks shall be
handled as follows:
- Proceeds shall be transferred to Enterprise
Arrangement and Development Fund in case of selling shares in a joint-stock
company the ownership of capital in which is represented by a Ministry or the
People’s Committee of a province (after deducting reasonable costs of
transfer).
- Proceeds from selling shares in joint-stock
companies having capital contributions of a state-owned corporation or wholly
state-owned company shall be included in income from financial activities of
the enterprise after deducting the value of investment, transfer costs, and
taxes as prescribed.
Article 11. Selection of consultancy organizations
to formulate capital withdrawal plan and estimate capital withdrawal costs
The owner’s representative agency of the
joint-stock company shall hire a consultancy organization to formulate the
capital withdrawal plan and estimate capital withdrawal costs. The selected
consultancy organization is legally responsible for their decisions.
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IMPLEMENTATION
Article 12. Responsibility of the Ministry of
Finance
1. Direct the State Securities Commission to issue
the model statute on selling shares in blocks at auction.
2. Cooperate with other ministries and the People’s
Committees of provinces in resolving difficulties; request competent
authorities to consider the difficulties beyond its competence.
Article 13. Responsibilities of other Ministries,
the People’s Committees of provinces, the Board of members of state-owned
corporations, presidents of wholly state-owned companies
1. Request the representative to:
a) Formulate the plan for selling shares in blocks
(including criteria for selecting eligible investors) and submit it to a
competent authority for approval.
b) Cooperate with the Stock Exchange to formulate
the statute on selling shares in blocks at auction.
c) Cooperate with investors in surveying the
business operation of the enterprise.
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2. Hire a capable valuation organization to
determine the starting price when selling shares in blocks; hire a consultancy
organization to formulate the capital withdrawal plan and estimate capital
withdrawal costs.
3. Inspect, supervise the implementation of the
plan for selling shares in blocks of enterprises under their management as
prescribed.
4. Resolve or request competent authorities to
resolve difficulties procedures arise during the implementation of the plan for
selling shares in blocks.
Article 14. Effect
1. This Decision comes into force from the day on
which it is signed.
2. In case a capital withdrawal plan that was
approved before the effective date of this Decision has to be revised to sell
shares in blocks, regulations of this Decision shall apply.
3. Ministries, Heads of ministerial agencies, Heads
of Governmental agencies, Presidents of the People’s Committees of provinces,
the Board of members of state-owned corporations, presidents of wholly
state-owned companies, authorized representatives of capital of state-owned
corporations, companies, and relevant entities are responsible for the implementation
of this Decision./.
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