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MINISTRY OF
FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.40/2018/TT-BTC
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Hanoi, may 04,
2018
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CIRCULAR
PROVIDING
GUIDELINES FOR INITIAL OFFERING OF SHARES AND MANAGEMENT AND USE OF PROCEEDS
FROM EQUITIZATION OF STATE-OWNED ENTERPRISES AND SINGLE-MEMBER LIMITED
LIABILITY COMPANIES WITH 100% CHARTER CAPITAL INVESTED BY STATE-OWNED
ENTERPRISES
Pursuant to the Enterprise Law No.68/2014/QH13
dated November 26, 2014;
Pursuant to the Law No. 69/2014/QH13 on
Management and use of state capital invested in enterprises’ production and
business activities dated November 26, 2014;
Pursuant to Decree No.87/2017/ND-CP dated on
July 26, 2017 of the Government on functions, missions, rights and
organizational structure of the Ministry of Finance;
Pursuant to Decree No.126/2017/ND-CP dated
November 16, 2017 of the Government on equitization of state-owned enterprises
and single-member limited liability companies with 100% charter capital
invested by state-owned enterprises;
Pursuant to Decree No.58/2012/ND-CP dated July
20, 2017 of the Government prescribing detailed regulations and providing
guidelines for some articles of the Law on Securities and the Law on amendments
to the former;
Pursuant to Decree No.60/2015/ND-CP dated June
26, 2015 which amends Decree No.58/2012/ND-CP dated July 20, 2012 of the
Government prescribing detailed regulations and providing guidelines for some
articles of the Law on Securities and the Law on amendments to the former;
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The Ministry of Finance provides guidelines for
initial share offering and management and use of proceeds from the equitization
of state-owned enterprises and single-member limited liability companies with
100% charter capital invested by state-owned enterprises as follows:
Chapter I -
GENERAL REGULATIONS
Article 1. Scope and regulated
entities
1. This Circular provides guidelines for:
a) the order, procedure and forms for initial
offering of shares and management, use of proceeds from equitization;
registration of share auction in connection with registration, depository,
registration or listing purchased at auction from equitized enterprises as
prescribed in Article 2 in Decree No.126/2017/ND-CP.
b) preparation of final accounts and handling of
the balance of the Business Arrangement Support Fund in parent companies of
state-owned economic groups, parent companies of state corporations and parent
companies in groups of parent companies - subdiaries at the time of December
31, 2017.
2. Regulated entities:
a) Enterprises prescribed in clause 2 and 3 in
Article 2 of Decree No.126/2017/ND-CP (hereinafter referred to as equitized
enterprises).
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Article 2. Definitions
1. “initial offering of shares” means sale of
shares in forms prescribed in this Circular held by equitized enterprises to
convert into joint-stock companies.
2. A share auction will be considered unsuccessful
if:
a) no investor registers to attend such auction
b) only one investor registers to attend such
auction.
c) none of the investors submit the auction entry
slip.
d) all of the successful bidders refuse to purchase
the shares.
3. ” underwriting organization” may be a single
securities company or a group of securities companies licened to underwrite the
share issuance for enterprises in accordance to provisions of the law on
securities and securities market.
4. ‘deposit" means a money amount paid in
advance by an investor engaged in the offering of shares to protect his/her
right to purchase such shares
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PARTICULAR REGULATIONS
SECTION I –ELIGIBLE BUYERS AND SELLING PRICES
Article 3. Eligible buyers
1. Domestic or foreign investors prescribed in
clause 1 and 2 in Article 6 of Decree No.126/2017/ND-CP including organizations
and individuals, even employees working in equitized enterprises.
2. Domestic and foreign strategic investors meeting
requirements as prescribed in point a in clause 3 in Article 6 of Decree
No.126/2017/ND-CP.
For equitized enterprises running business in
sectors or trades subject to Conditional Business Investment of the law on
Investment, the steering committee in charge of the equitization (hereinafter
referred to as the steering committee) shall notify the representative
authority for considering and adding the condition for selecting strategic
investors in same business sectors or trades of such enterprises and other
conditions in consistent with relevant law provisions.
3. Entities prescribed in Article 42 of Decree
No.126/2017/ND-CP.
4. Trade unions of equitized enterprises prescribed
in point b in clause 2 in Article 33 of Decree No.126/2017/ND-CP. Trade unions
authorize a competent person to carry out procedures relating to the sale of
shares.
Article 4. Entities not
eligible for purchasing initially issued shares
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Article 5. Selling prices in
the initial offering of shares
1. The selling price offered to investors through
the auction is the price they offer in such auction and is identified as the
winning price according to the auction results prescribed in clause 5 in
Article 7 of this Circular. For the case in which the equitized enterprise sell
its shares through issuance underwriting, the steering committee shall come to
an agreement with the underwriting organization on the underwriting price but not
lower than the reserve price approved by the representative authority.
2. The selling prices of preferential shares
offered to entities prescribed in clause 1 in Article 42 of Decree
No.126/2017/ND-CP include:
a) the selling price offered for entities prescribed
in point a and c in clause 1 in Article 42 of Decree No.126/2017/ND-CP which is
equal to 60% of face value of a share (VND 10 thousand per a share)
b) the selling price offered to entities prescribed
in clause 2 in Article 42 of Decree No.126/2017/ND-CP which is the reserve
price approved in the equitizaton plan by the representative authority
3. The selling price of preferential shares offered
to the trade union of the equitized enterprise shall be equal to the face value
of a share (VND 10 thousand per share)
4. The selling price offered to strategic
investors:
a) With regard to the auction among strategic
investors, the selling price is the successful bid but not lower than the
average winning price in the public auction or the price agreed with the
investor in case of public offering with only one investor or not lower than
the reserve price in the successful public offering and must adhere to the
principle for selecting the investor in the descending order of prices offered
to make sure there will be enough shares for sale.
b) For the case in which two or more strategic
investors subscribe for shares with the purchasing number equal to or smaller
than number of shares expected to be sold according to the approved
equitization plan or only one investor subscribes for shares, the selling price
will be decided by the steering committee or the organization authorized by the
steering committee and each investor but not lower than the average winning
price in the public offering or not lower than the price agreed with the
investor in the public offering with only one investor or not lower than the
reserve price in the successful public offering.
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Article 6. Initial offering of
shares
1. Depending on the equitization plan approved by
the representative authority (according to Appendix 1 issued together with this
Circular including the English version), the steering committee shall instruct
the equitized enterprise to launch the plan for initial offering of shares in
the forms approved in the equitization plan, where:
a) Public auction shall be applied for initial
offering of shares including the number of shares offered to investors but
failed to be sold according to the equitization plan.
b) Direct negotiation will be applied in the
following cases:
- Selling to strategic investors in the following
cases:
+ Strategic investors subscribe for shares with the
purchasing number smaller than number of shares expected to be sold according
to the approved equitization plan.
+ Only one strategic investor subscribes for
shares.
- Selling to the investors the number of unsold
shares as prescribed in clause 2 and 4 in Article 37 of Decree
No.126/2017/ND-CP.
- Selling to employees and trade unions
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d) Book-building shall comply with the special
guidance of the Ministry of Finance.
2. The equitized enterprise must finish the initial
offering of share in the form that has been approved within 4 months from the
day on which the equitization plan is approved. For the case in which the
equitization plan is revised as prescribed in clause 3 in Article 6 of this
Circular, the time for the equitized enterprise to finish the initial offering
of shares will be calculated from the day on which the decision on revising the
equitization plan is approved by the representative authority.
3. The offering of shares to strategic investors
shall comply with regulations in clause 3 in Article 6 of Decree
No.126/2017/ND-CP. Where:
a) The selection and registration of share purchase
by strategic investors must be organized before the time publishing information
on the public auction as prescribed in Article 7 of this Circular.
b) For the case in which the strategic investors do
not subscribe for all shares offered, the steering committee shall request the
representative authority to make a decision on revising the equitization plan
to sell the remaining shares to share at public auction.
Article 7. Public auction
1. General principles:
a) When registering the initial
offering of shares through the auctioneering organization, the equitized
enterprise is also required to make the registration, depository and registration
of trading or listing shares on stock exchanges if eligible for listing share
in accordance to provisions of the law on securities.
b) The Vietnam Securities
Depository Center and Stock Exchanges shall organize the registration,
depository and trading or listing registration for the winning shares have been
paid. The number of shares sold to strategic investors and employees working in
the equitized enterprise shall be registered and deposited under the guidance
of Vietnam Securities Depository Center and registered to be traded or listed
on the securities market in accordance to provisions of the law on securities
in force.
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2. Organization of auction of shares:
a) The auction sale of share shall be organized
publicly at Stock Exchanges. If total face value of share to be sold of the
equitized enterprise is under VND 10 billion, the representative authority may
consider and decide to organize the auction at the securities company or
service centers or enterprises in charge of property auction in accordance to
provisions of the law on property auction (hereinafter referred to as the
broker).
b) The auction for strategic investors shall be
organized at the Stock Exchanges.
c) The location of the auction shall be prescribed
in the regulations on share auction.
3. Auction preparation:
a) The auctioneering organization shall issue a
decision on establishing a council for share auction and regulations on share
auction as regulated. The Chairperson of the council may be the Head of the
steering committee or the member of the steering committee authorized in
writing by the Head of such steering committee.
b) The steering committee shall publish the
information on the equitized enterprise before the auction at least 20 working
days. The information to be published is prescribed in Appendix 2 issued
together with this Circular.
For equitized enterprises selling shares at Stock
Exchanges, information published according to Appendix 2 issued together with
this Circular must include an English version.
c) The representative authority shall decide or
authorize the steering committee to decide the reserve price in the decision on
approval for equitization plan and publish such reserve price together with the
information on the equitized enterprise.
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4. Conducting an auction:
a) The investors shall subscribe the purchasing
number of shares and submit the deposit as prescribed in point a in clause 1 in
Article 11 of this Circular in the time prescribed in the regulation on auction
sale. Auction entry slips will be given to investors by the auctioneering
organization.
With regard to
foreign investors, the provision of such slips must comply with regulations in
clause 2 in Article 6 of Decree No.126/2017/ND-CP.
b) The investors must fill out the slip as required
including information on the bid price and send it to the auctioneering
organization by:
- submitting the slip directly to the broker if the
auction is organized by such broker and to auction agents if the auction is
organized by the Stock Exchanges.
- submitting the slip by post as prescribed in the
regulation on share auction.
5. Determination
of auction results:
a) The determination of auction results must adhere
to the principle of selecting the bids in the descending order to make sure
that there will be enough shares offered to the investors but not lower than
the reserve price. At the lowest successful
bid, if different investors (even foreign investors) offer the same bid but the
number of remaining shares is less than total number of shares subscribed at
the lowest successful bid, the number of shares purchased by each investor will
be identified as follows:
The number of
shares purchased
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The remaining
shares offered
x
The number of
shares subscribed by each investor
Total number of
shares subscribed
Where there is a regulation on the maximum number
of purchased share for foreign investors, the auction results shall be
determined in accordance to the above-mentioned principle but the number of
shares purchased by foreign investors must not excess the maximum number in
compliance with law in force.
b) When the auction ends, according to its results,
the auctioneering organization, auction council, representative of the steering
committee and representative of the equitized enterprise shall make and sign
the minutes of auction result determination according to Appendix 3 issued
together with this Circular.
c) The steering committee and auctioneering
organization shall cooperate with each other in publishing the auction results
and refunding the deposit to investors attending such auction but failing in
bid in accordance to the auction regulations within 3 working days from the day
on which the minutes of auction result determination is made.
6. If the auction of shares is not successful, the
equitized enterprise shall comply with regulations in clause 2 in Article 9 of
this Circular.
7. Investors are not entitled to have their deposit
refunded if violating the regulations on auction. Violations against the
auction regulations include offering a price lower than the reserve price;
abolishing the right to purchase winning shares in the auction and other acts
prescribed in the auction regulations.
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a) The auctioneering organization shall send a
written notification of the average price paid for purchasing shares and a list
of owners of paid winning shares to the Vietnam Securities Depository Center
and Hanoi Stock Exchange within 15 days from the payment due date. The list of
winning share owners must specify their full names, subscribe number, address,
depository account and the number of shares owned. The Vietnam Securities
Depository Center must provide a share trading code for the equitized enterprise
based on the request of such enterprise which is specified in its Application
form for auction of shares (according to Appendix 5 issued together with this
Circular).
b) According to the notification of the
auctioneering organization as prescribed in point a in clause 8 in this
Article, Hanoi Stock Exchange shall put the shares in trading on the trading
system of Unlisted Public Company Market (UpCoM) within 90 days from the due
date of payment for purchasing wining shares. The reference price on the first
day on the UpCoM trading system will be the average winning price of the public
auction.
c) If the equitized enterprise has its enterprise
registration certificate granted before 90 days from the payment due date, such
enterprise must send a written notification to Hanoi Stock Exchange within 5
working days from the day on which the enterprise registration certificate is
granted. Hanoi Stock Exchange must put the shares in trading on the UpCoM
trading system within 5 workings days from the day on which the notification of
the equitized enterprise is received.
d) For the case in which the equitized enterprise
is eligible for listing share at the Stock Exchange, it must submit an
application for listing to the Stock Exchange to list shares as regulated and
notify the results of initial offering of shares to the State Securities
Commission within 90 days from the finish date of the initial offering of
shares.
Article 8. Issuance underwriting
1. Within 20 days from the day on which the
equitization plan is approved by competent authorities, the steering committee
shall negotiate with the underwriting organization for the number of shares,
price for underwriting and send a report to the representative authority for
them to approve or authorize the steering committee to approve within 10 days
from the day on which the written notification of the steering committee is
received. The underwriting price must not be lower than the reserve price
offered in the share auction. For the case in which the share is sold in the
form of underwriting after being sold at the public auction, the underwriting
price must not be lower than the average successful bid in such public auction.
2. The steering committee shall sign a contract
with the underwriting organization within 5 working days from the day receiving
the approval or authorization from the representative authority.
3. The underwriting organization shall distribute
and sell the number of shares underwritten as agreed in the underwriting
contract. If the shares fail to be sold out, the underwriting organization is
required to purchase all remaining shares at the underwriting price agreed in
the underwriting contract.
4. The underwriting organization may earn an
underwriting fee under the agreement with the steering committee but not excess
the maximum fee prescribed in the regulations on underwriting fees issued by
the Ministry of Finance. The underwriting fee must be stipulated in the
underwriting contract and count towards the equitization expenses.
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6. When the process of selling and distributing
shares ends, the steering committee shall cooperate with the equitized
enterprise and underwriting organization in verifying and reviewing the
underwriting contract for liquidating such contract as regulated.
Article 9. Direct negotiation
1. Selling shares to strategic investors by
negotiation
a) Within 15 days from the payment due date of the
investors attending in the public auction, the steering committee shall
cooperate with the equitized enterprise in negotiating with strategic investors
for the number of shares to be sold and selling price then send a report to the
representative authority for them to approve or authorize the steering
committee to approve within 10 days from the day on which the report of the
steering committee is received.
b) According to the results of such negotiation,
the steering committee shall instruct the equitized enterprise and strategic
investors to sign the purchase/sales contract within 5 days from the results of
negotiation is approved by the representative authority.
2. Selling
shares through negotiation in case of unsuccessful public auction:
a) For the case in which no investor subscribes for
shares in the public auction:
The auctioneering organization must notify the
unsuccessful auction to the steering committee and equitized enterprise within
3 working days from the deadline for subscribing for the shares. The steering
committee shall send a report to the representative authority to finish the
sale of shares to employees and trade unions according to the approved
equitization plan within 20 days from the deadline for registration for share
auction. And the equitized enterprise must carry out procedures to convert into
a joint-stock company.
For unsold shares including the number of shares
refused by employees and trade unions, the steering committee shall request the
representative authority to revise the charter capital structure, the charter
capital (if any) and make a divestment as required after the enterprise
converts into a joint-stock company.
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The auctioneering organization must notify the
unsuccessful auction to the steering committee and equitized enterprise within
3 working days from the deadline for subscribing for shares in the auction.
The steering committee shall negotiate with the
investor subscribing for shares for selling the shares at the price not lower
than the reserve price with the satisfactory purchasing number subscribed.
According to the results of the negotiation with
the investor, the steering committee shall instruct the equitized enterprise
and such investor to sign a purchase/sales contract within 5 days from the day
on which the selling price as well as the number of shares to be sold are
mutually decided.
For unsold shares including the number of shares
refused by employees and trade unions, the steering committee shall request the
representative authority to revise the charter capital structure, the charter
capital (if any) and make a divestment as required after the enterprise
converts into a joint-stock company.
c) For the case in which none of the winning
bidders wishes to purchase shares after the public auction:
The auctioneering organization must notify the
auction results to the steering committee and equitized enterprise within 3
working days from the due date of payment for purchasing shares. The steering
committee shall send a report to the representative authority for
implementation as prescribed in point a in clause 2 in this Article.
3. Selling unsold shares from the public auction
through negotiation (including the number of winning shares but refused by the
investors):
Within 3 working days from the payment due date as
prescribed in the regulations on share auction, according to the number of
unsold shares in the public auction, the steering committee shall instruct the
equitized enterprise to make a list and notify all investors attending the
auction, exclusive winning bidders in such public auction, for the purpose of
staring a negotiation on selling the number of shares subscribed in the auction
at the price offered in the announced auction selected in the descending order
to make sure all remaining share is sold.
According to the results of the negotiation with
the investors attending the auction, the steering committee shall instruct the
equitized enterprise and such investor to sign a purchase/sales contract within
20 days from the payment due date.
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Within 5 working days from the due date of payment
for purchasing shares as agreed in the signed purchase/sales contract,
according to the number of unsold shares, the steering committee shall instruct
the equitized enterprise to make a list and notify all winning bidders in the
public auction, exclusive those refusing the share purchase, for the purpose of
staring a negotiation on selling such shares at the price offered by each
investor in the announced auction selected in the descending order to make sure
all remaining share is sold.
According to the results of the negotiation with
investors attending the auction, the steering committee shall instruct the
equitized enterprise and such investor to sign a purchase/sales contract within
10 days from the day such investors subscribe for shares.
c) For the case in which the shares fail to be sold
out as prescribed in point b in clause 3 in this Article, the steering
committee must send a report to the representative authority to take action in
accordance to regulations in point a in clause 2 in this Article.
4. For the number of share that are refused by
employees and trade unions, the steering committee must send a report to the
representative for handling as prescribed in clause 3 in this Article.
Article 10. Share auction
intended for strategic investors
1. Where two or more than two strategic investors
eligible to attend the auction subscribe for shares and total number of shares
subscribed is more than number of share expected to be sold according to the
approved equitization plan, the steering committee shall notify the
representative authority for holding an auction for strategic investors at the
Stock Exchange.
2. The reserve price in the auction intended for
strategic investors may be the average winning price in the public auction or
the price agreed with the investor in case only one investor subscribes for
shares in the public auction or the reserve price offered in the unsuccessful
public auction.
3. Strategic investors may deposit an amount equal
to 20% of the value of share subscribed at the reserve price in the approved
equitization plan or be underwritten by the credit institution or branch of the
foreign bank as regulated by law. Strategic investors must put the deposit into
the account for proceeds from sale of share of the equitized enterprise or open
a deposit account or sign the underwriting contract with credit institutions or
braches of foreign banks within 5 working days from the deadline for
subscribing for shares.
4. The auctioneering organization must issue a
decision founding a council for share auction as well as regulations on share
auction as required. The Chairperson of the share auction council may be the
Head of steering committee or the member of steering committee who is
authorized in writing by the Head of steering committee.
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a) The determination of auction results must comply
with regulations in point a in clause 5 in Article 7 of this Circular.
b) When the auction ends, the auctioneering
organization, auction council, representative of the steering committee and
representative of the equitized enterprise take responsibility to make and sign
the minutes of auction result determination according to Appendix 4 issued
together with this Circular.
c) The steering committee shall cooperate with the
Stock Exchange in publishing the auction results right after signing the
minutes of auction result determination.
d) The steering committee shall instruct the
equitized to refund the deposit to the eligible investors attending the auction
but fail in bid as prescribed in point a in clause 1 in Article 11 of this
Circular.
6. According to the results of the share auction
for strategic investors, the equitized enterprise shall send a report to the
representative authority for consideration and sign the official contract with
strategic investors winning in bids within 15 days from the day on which the
auction result is published.
7. The equitized enterprise must pay the proceeds
from the sale of shares to strategic investors into the Business Arrangement
and Development Support Fund within 5 working days from the payment due date.
SECTION III – MANAGEMENT AND USE
OF PROCEEDS FROM THE EQUITIZATION
Article 11. Management of
deposit and payment for purchasing share
1. Management of deposit
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The investors must pay a deposit amount equal to
10% of the value of the subscribed shares at the reserve price into the account
of the auctioneering organization at least 5 working days before the auction as
prescribed in the auction regulations. With regard to the auction for strategic
investors, the management of deposit will comply with regulations in clause 3
in Article 10 of this Circular.
The auctioneering organization (or the equitized
enterprise in case of share auction intended for strategic investors) must
refund the deposit to the investors attending the auction but failing to
purchase shares.
b) In case of direct negotiation:
- With regard to the sale of shares to strategic
investors, the management of deposit will comply with regulations in clause 3
in Article 10 of this Circular.
- Where the share is sold to strategic investors in
the form prescribed in point b in clause 2 in Article 9 of this Circular, the
investors must pay an amount of deposit equal to 10% of the value of the share
subscribed at the offered price approved by the representative authority into
the account for proceeds from the equitization of the enterprise at the same
time subscribing for shares from such enterprise.
- Where the share is sold to strategic investors in
the form prescribed in point a and b in clause 3 in Article 9 of this Circular,
the investor must pay an amount of deposit equal to 10% of the value of the
share subscribed according to the selling price offered to each investor
prescribed in point a and b in clause 3 in Article 9 of this Circular into the
account for proceeds from the equitization of the enterprise at the same time
subscribing for shares from such enterprise..
- The equitized enterprise must refund the deposit
to the investors subscribing for shares but failing to purchase them within 4
working days from the finish date of the share sale through direct negotiation.
The remaining money amount shall be handled in accordance to regulations on
management and use of proceeds from the equitization in this Circular.
c) In case of underwriting:
The underwriting organization must submit an amount
of deposit equal to 10% of the value of share underwritten as agreed in the
underwriting contract into the account for proceeds from the equitization of
the equitized enterprise at the time signing the underwriting contract.
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a) The investors must pay the price to purchase
shares in accordance to the following regulations:
- With regard to the public auction conducted by
the auctioneering organization including the auction for strategic investors
conducted at the Stock Exchange, the investors must finish the procedure for
purchasing shares and transfer the money amount for purchasing such shares into
the banking account of the auctioneering organization or into the account for
proceeds from the equitization of the enterprise in case of auction for
strategic investors in accordance to the auction regulations within 10 days
from the day on which the auction result is published.
- In case of direct negotiation:
The investors (including strategic investors) shall
make the payment for purchasing shares within 5 working days from the day on
which the purchase/sales contract is signed.
- In case of underwriting:
The underwriting organization must transfer the
money as prescribed in clause 2 in Article 12 of this Circular within 10 days
from the finish date of sale/purchase of shares under the underwriting
contract.
b) The deposit shall be deducted from the total
payment for purchasing shares. If the deposit is more than the payables, the
difference between such deposit and payable shall be refunded to the investors
within 3 working days from the payment due date.
c) After the payment due date, investors fail to
make payment or fail to make full payment may not have their deposit for the
number of shares unpaid refunded. The unpaid shares will be considered unsold
shares and handled in accordance to regulations in clause 3 in Article 9 of this
Circular.
3. The shares must be sold/purchased in Vietnam
Dong. The payment shall be made in cash or through transfer.
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1. In case of share auction:
Within 5 working days from the payment due date of the
investors attending the auction, the auctioneering organization is required to:
a) transfer the proceeds from the sale of shares to
the equitized enterprise as follows:
- With regard to state-owned enterprises
(hereinafter referred to as graded I enterprises): transfer the proceeds from
the sale of shares corresponding to the funding for implementing the policy on
redundant employees and the equitization expenses according to the cost
estimate determined in the equitization plan.
- With regard to enterprises with 100% of capital
invested by state-owned enterprises (hereinafter referred to as graded II
enterprises): transfer the proceeds from the sale of shares corresponding to
the funding for implementing the policy on redundant employees and the equitization
expenses according to the cost estimate determined in the equitization plan and
payment for tax liabilities (if any)
b) transfer all remaining proceeds from the sale of
shares into the Business Arrangement and Development Support Fund, including the
deposit amount not refunded to the investors, if any.
2. In case of underwriting:
Within 10 days from the finish date of
sale/purchase of shares under the underwriting contract, the underwriting
organization is required to:
a) transfer the proceeds from the sale of shares to
the equitized enterprise as follows:
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- With regard to graded II enterprises: transfer
the proceeds from the sale of shares corresponding to the funding for
implementing the policy on redundant employees and the equitization expenses
according to the cost estimate determined in the equitization plan as well as
payment for tax liabilities (if any).
b) transfer all remaining proceeds from the sale of
shares into the Business Arrangement and Development Support Fund, including the
deposit amounts not refunded to the investors, if any.
3. With regard to the sale of shares to investors
through negotiation or the sale of preferential shares to trade unions and
employees, the equitized enterprise is required to submit the proceeds from the
sale of shares into the Business Arrangement and Development Support Fund
within 5 working days from the payment due date.
4. For the case in which total proceeds from the
sale of shares prescribed in clause 1, 2 and 3 in this Article is lower than
the costs for equitization of each type of enterprise prescribed in point in
clause 1 in this Article, the equitized enterprise is entitled to keep all such
proceeds for the purpose of covering expenses according to the approved cost
estimate and prepare an official final accounts at the time receiving the
initial enterprise registration certificate.
Article 13. Settlement of
proceeds from equitization at the official date of equitization
1. Proceeds from the equitization of the
state-owned enterprise include:
a) the difference between the value of state
capital recorded in the accounting book at the time of enterprise valuation and
the charter capital specified in the equitization plan approved by competent
authorities.
b) the proceeds from the sale of shares, including
the deposit not refunded to the investors as prescribed in this Circular.
c) the difference in the value of state capital
increasing from the date of enterprise valuation to the official date of
equitization.
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dd) the balance of the reward fund intended for the
managers and controllers of the enterprise at the official date of equitization
after covering all expenses as regulated (if any)
2. Proceeds from equitization of the state-owned
enterprise at the official date of equitization shall be settled as prescribed
in clause 2 in Article 39 of Decree No.126/2017/ND-CP, to be specific:
a) In case of sale of state capital:
The proceeds from equitization will be used to pay
the costs of equitization and cover the expenses incurred on the implementation
of the policy towards redundant employees as required. The remaining, including
the difference among the selling prices of shares, will be submitted to the
Business Arrangement and Developments Support Fund.
b) In case of remaining of state capital and
issuance of additional stocks for increasing the charter capital, the proceeds
from equitization shall be handled as follows:
- The proceeds value equivalent to the value of
number of additional shares will be kept at the enterprise.
- The capital surplus from additional shares will
be used to pay the costs of equitization and cover all expenses incurred on the
implementation of the policy towards redundant employees, where:
Capital surplus
from additional shares
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Number of
additional shares
x
Successful bid
-
Reserve
price
The remaining money amount of the capital surplus (if
any) equivalent to the number of additional shares in the charter capital
structure will be kept at the joint-stock company and submitted to the Business
Arrangement and Development Support Fund. Where, the money amount kept at the
joint-stock company which is equivalent to the additional shares in the charter
capital structure (hereinafter referred to A) shall be determined as follows:
A
=
Number of
additional shares
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Capital
surplus from additional shares
-
Equitization
expenses according to the final accounts approved by competent authorities
-
Funding for the
redundancy policy according to final accounts approved by competent
authorities
Total shares in
the charter capital of the company
c) In case of sale of state capital in combination
with issuance of additional shares, the proceeds from equitization shall be
handled as follows:
- The proceeds from sale of state shares, including
the difference in the selling prices, will be submitted to the Business Arrangement
and Development Support Fund.
- The remaining money will be handled as prescribed
in point b in clause 1 in this Article.
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4. For the case in which the proceeds
from sale of preferential shares to employees, trade unions, strategic
investors and other investors fail to cover relevant expenses, including the
equitization expenses, assistance for settlement of the policy towards
redundant employees, incentives for employees, under the final accounts
approved by competent authorities, the settlement will comply with regulations
in point d in clause 2 in Article 39 of Decree No.126/2017/ND-CP.
5. With regard to graded II enterprises:
5.1. In case of sale of capital invested by graded
I enterprises:
The proceeds from equitization will be used to
refund the book value of sold shares and tax payables as required (if any) to
graded I enterprises. The remainings, after deducting the equitization
expenses, expenses incurred on the settlement of redundancy policy, discount
prices of shares sold to employees, shall be submitted to the Business
Arrangement and Development Support Fund.
5.2. In case of remaining of the capital invested
by graded I enterprises and issuance of additional stocks, the proceeds from
equitization shall be handled as follows:
a) The proceeds equivalent to the number of
additional stocks will be kept at the enterprise.
b) The capital surplus from additional shares will
be used to pay the costs of equitization and cover all expenses incurred on the
implementation of the policy towards redundant employees and make up for share
value of preferential shares sold to the employees.
The remaining money amount of the capital surplus
(if any) equivalent to the value of additional stocks in the charter capital
structure will be kept at the joint-stock company and the remaining will be
submitted to the Business Arrangement and Development Support Fund.
The capital surplus from additional shares and the
remaining money equivalent to the value of additional shares in the charter
capital structure kept at the joint-stock company will be determined as
prescribed in point b in clause 2 in this Article.
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5.3. In case of sale of a portion of capital
invested by graded I enterprises in combination with issuance of additional
shares, the proceeds from equitization shall be handled as follows:
a) The proceeds from equitization will be used to
refund the book value of sold shares equivalent to the capital invested by
graded I enterprises and tax payables as required (if any) to such enterprises.
b) The remaining money will be handled as
prescribed in point a in clause 5.2 in this Article.
For the case in which the proceeds from
equitization fail to offset expenses under the final accounts approved by
competent authorities (including the book value of sold shares equivalent to
the capital invested by graded I enterprises and tax payables (if any) refunded
to such enterprises, equitization expenses, expenses incurred on the settlement
of redundancy policy, incentives for employees), the graded I enterprise must
make up for the deficit which will count towards the expenses in financial
activities of such enterprise and such expenses will be deducted when
determining the corporate income tax.
6. The equitized enterprise must calculate the
proceeds from equitization itself and submit them to the Business Arrangement
and Development Support Fund as prescribed in this Circular within 90 days from
the day on which the initial enterprise registration certificate is granted.
7. The equitization enterprise must submit the difference
increasing from the amount paid prescribed in clause 6 in this Article (if any)
to the Business Arrangement and Development Support Fund within 5 working days
from the day on which the decision on approval for the value of state capital
at the official date of equitization and the final accounts of the proceeds
from equitization is issued.
Article 14. Equitization
expenses
Equitization expenses shall be determined as
prescribed in Article 8 of Decree No.126/2017/ND-CP, to be specific:
1. Equitization expenses mean expenses calculated
from the date of equitization decision to the official date of equitization.
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3. For equitization of agriculture or forestry
companies prescribed in Decree No,118/2014/ND-CP dated December 17, 2014 of the
Government, equitization expenses will be determined and handled in accordance
to guidelines provided in this Circular and relevant guiding documents.
SECTION IV – PREPARATION OF
FINAL ACCOUNTS FOR BUSINESS ARRANGEMENT SUPPORT FUND
Article 15. Preparation of
final accounts for the proceeds submitted to the Business Arrangement Support
Fund of parent companies of state-owned economic corporations, state
corporations, parent companies in groups of parent companies and subdiaries
(hereinafter referred to as parent companies)
The parent company shall take responsibility to
send a report of final accounts prepared for Business Arrangement Support Fund
in accordance to the following regulations:
1. Make comparisons and verify all liabilities of
the Business Arrangement Support Fund at the time of December 31, 2017
2. Make a report of the final accounts prepared for
the Business Arrangement Support Fund at the time of- December 31, 2017 which
sufficiently and truthfully features the revenues-expenses, liabilities
(including late payment interests) and unsolved issues in the fund management
and send it to the representative authority and the Ministry of Finance.
According to such report, the proceeds submitted to the Business Arrangement
Support Fund of the parent company before the day on which Decree
No.126/2017/ND-CP comes into force (January 01, 2018) shall be handled as
follows: 2.1. Proceeds from equitization:
a) With regard to graded II enterprise converting
into joint-stock company before January 01, 2018 but not having its final
accounts for capital approved at the official date of equitization:
- The parent company must prepare the final
accounts for the proceeds from equitization and decide to publish the actual
value of its capital at the official date of equitization in accordance to regulations
in Decree No.59/2011/ND-CP dated July 18, 2011, Decree No.189/2013/ND-CP dated
November 20, 2013 and Decree No.116/2015/ND-CP dated November 11, 2015 of the
Government and relevant guiding documents, where, deductions from the proceeds
from equitization includes the book value of sold shares refunded to the parent
company.
- The parent company shall instruct the graded II
enterprise to submit the proceeds from equitization to the Business Arrangement
and Development Support Fund within 5 working days from the day on which the
decision on publication of the real value of the capital invested by the parent
company at the official date of equitization is issued. For the case in which
the proceeds from equitization of graded II enterprise fail to offset expenses
as required, including the book value of sold shares refunded to the parent
company, the parent company must make up for the deficit which will count
towards the expenses in financial activities of such parent company.
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2.2. Proceeds from other forms of arrangement or
conversion:
The proceeds from other forms of arrangement or
conversion of graded II enterprise will be determined in compliance with
provisions of the law on business arrangement and conversion. The graded II
enterprise must submit the proceeds from other forms of arrangement or
conversion to the Business Arrangement and Development Support Fund within the
time limit prescribed in the regulations on management and use of the Business
Arrangement and Development Support Fund.
Article 16. Settlement of the
Business Arrangement and Development Support Fund at the time of December 31,
2017
1. The parent company must pay all balance of the
Business Arrangement Support Fund at the time of December 31, 2017 into the
Business Arrangement and Development Support Fund (of the Ministry of Finance)
before June 30, 2018 as prescribed in clause 7 in Article 48 of Decree
No.126/2017/ND-CP and Resolution No.131/NQ-CP dated December 6, 2017 of the
Government at the Government's Regular Meeting – November 2017. In case of late
payment, the parent company must pay the late payment interests in accordance
to the regulations on management and use of the Business Arrangement and
Development Support Fund.
2. According to the final accounts prepared for the
Business Arrangement Support Fund as prescribed in Article 15 of this Circular,
the parent company must collect all liabilities and pay into the Business
Arrangement and Development Support Fund. If the liabilities fail to be
collected, the parent company must pay all liabilities of the Business
Arrangement Support Fund according to the report of the final accounts prepared
for the Business Arrangement and Development Support Fund before June 30, 2018.
After which, it has to pay the late payment interests in accordance to
regulations on management and use of the Business Arrangement and Development
Support Fund.
Chapter III -
IMPLEMENTATION
Article 17. Responsibilities of the steering
committee
1. Submit the criteria for selecting eligible
strategic investors, number of shares and the reserve price to the
representative authority.
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3. Publish and provide the auctioneering
organization with sufficient and accurate information on the equitized
enterprise before the sale of shares as regulated.
4. Register the auction as
follows:
a) Submit an application form for
auction and documents regarding the equitization to the auctioneering
organization according to the form and the list of documents prescribed in
Appendix 5 issued together with this Circular and the Vietnam Securities
Depository Center, Hanoi Stock Exchange to make a registration of share auction
at the same time of registration of share code, depository and registration of
trading the winning shares in the auction.
b) Sign or authorize to the
equitized enterprise to sign the contract for provision of auction service with
the auctioneering organization-
5. Cooperate with the auctioneering organization in
informing the investors of information relating to the equitized enterprise and
the auction not later than 20 working days before the auction.
6. Supervise the share auction if such auction is
conducted at stock exchanges or by brokers.
7. Confidentially protect all the bid prices
offered by investors until the official date of result publication.
8. Sign the minutes of determination of public
auction results and the minutes determining the results of the auction among
strategic investors as prescribed in this Circular. Make a consolidated report
of the auction results and send it to the representative authority.
9. Send a report to the representative authority
and the Ministry of Finance (the Department of Corporate Finance).
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Article 18. Responsibilities
of the equitized enterprise
1. Provide sufficient and accurate information and
documents about the enterprise, including the equitization plan, draft of
regulations on organization and operation of the joint-stock company before the
sale of shares as prescribed in this Circular.
2. Sign the minutes determining the auction results
and the minutes determining the results of the auction among strategic
investors as prescribed in this Circular.
3. Make a preparation of final accounts for the equitization
expenses and funding for redundancy policy and send it to the steering
committee as well as representative authority when the equitization ends.
4. Submit the proceeds from equitization in
accordance to regulations in this Circular. Pay the late payment interests as
prescribed in clause 3 in Article 39 of Decree No.126/2017/ND-CP in case of
late payment.
5. Make a registration of official information with
the Vietnam Securities Depository Center in accordance to provisions of the law
on securities and the guidance of the Vietnam Securities Depository Center,
including the information on the share issuance organization, the issued
shares, the list of organizations or individuals owning the shares and the
number of shares owned (number of shares sold to strategic investors, trade
unions and employees) within 15 days from the official date of equitization
(the day on which the enterprise registration certificate is granted).
6. Pay all unused provision for warranty on
products, goods and construction projects (with regard to signed contract with
unexpired warranty after the issuance date of the initial enterprise
registration certificate) into the Business Arrangement and Development Support
Fund within 30 days from the expiration date of warranty agreed in the
contract.
7. Make a report of the progress of payment for
publishing information as prescribed in clause 1 in Article 11 of Decree
No.126/2017/ND-CP and send it to the Ministry of Finance (the Department of
Corporate Finance) and the representative authority as follows:
a) The equitized enterprise must send a report of
the progress of payment of proceeds from the sale of shares according to
Appendix 8 issued together with this Circular within 5 working days from the
end date of initial offering of shares.
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c) The equitized enterprise must send a report of
the progress of payment of the proceeds from equitization after receiving an
approval according to Appendix 10 issued together with this Circular within 5
working days from the day on which the final accounts prepared for the proceeds
from equitization is approved by the representative authority.
8. Publicly and transparently provide information
on the equitization as prescribed in clause 1 in Article 11 of Decree
No.126/2017/ND-CP.
9. When losses are incurred due to violations
against or false implementation of regulations in this Circular, the equitized
enterprise and relevant individuals take responsibility to compensate in
accordance to provisions of laws.
Article 19. Responsibilities
of the auctioneering organization, Vietnam Securities Depository Center and
Hanoi Stock Exchange
1. The auctioneering organization is required to:
a) request the equitized enterprise to provide all
documents and information about the equitization as required.
b) make and issue a decision on founding a council
for share auction and regulations on share auction as prescribed in point a in
clause 3 in Article 7 and clause 4 in Article 10 of this Circular.
c) notify the time and place of the auction to the
steering committee and equitized enterprise.
d) publish the information relating to the sale of
shares at least 20 working days before the auction (according to Appendix 6
issued together with this Circular including an English version) at the
equitized enterprise, auction place and on public media, for instance, on 3
consecutive volumes of a single newspaper issued nationwide and on a newspaper
issued at the locality in which the head office of the enterprise is located.
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The auctioneering organization must compensate in
compliance with provisions of laws if publishing false information which is
different from the information and data provided by the steering committee and
the equitized enterprise.
a) receive the application form for attending the
auction, verify the eligibility for auction and give auction entry slips to
eligible investors.
The auctioneering organization must inform and
refund the deposit to investors ineligible for the auction (if they have
deposited).
g) cooperate with relevant organizations and
individuals in making and signing the minutes determining the public auction
results, the minutes determining the results of the auction among strategic
investors, publishing the auction results and collecting the money for
purchasing shares as regulated.
h) Confidentially protect all bid prices offered by
investors until the date of official result publication. Take responsibility
for the auction result determination as regulated.
i) submit the proceeds from the sale of shares of
the enterprise as prescribed in this Circular. Pay the late payment interests
as prescribed in clause 3 in Article 39 of Decree No.126/2017/ND-CP in case of
late payment.
2. The Vietnam Securities Depository Center is
required to:
Issue codes for the auction shares; provide the
services of registration, depository and clearing for winning shares that have
been paid of the equitized enterprise selling shares through auction. These
codes will be used constantly in the auction, registration, depository and
trading registration.
3. Hanoi Stock Exchange is required to:
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Article 20. Responsibilities
of the representative authority
1. Grant an approval for the equitization plan for
starting the sale of share and manage, use the proceeds from equitization in
compliance with regulations in this Circular.
2. Verify and supervise the steering committee and
equitized enterprise in selling shares according to the approved plan and
manage, use the proceeds from equitization as regulated.
3. Instruct and urge the equitized enterprise to pay
the proceeds from equitization into the Business Arrangement and Development
Support Fund as prescribed in this Circular.
4. Grant an approval for the final accounts
prepared for equitization expenses, funding for redundancy policy and the
proceeds from equitization and send it to the Ministry of Finance (the
Department of Corporate Finance)
5. Instruct and urge parent companies to handle the
balance and prepare the final accounts for the Business Arrangement Support
Fund as prescribed in Article 15 and 16 of this Circular.
6. Verify and prepare the final accounts for
management and use of the Business Arrangement Support Fund of the parent
company until December 31, 2017 and send a report to the Ministry of Finance.
7. Instruct and urge the representative of the
state capital of the parent company (if the state capital still remain) to pay
the balance of provision for warranty on products, goods and construction
projects as prescribed in clause 6 in Article 18 of this Circular.
Article 21. Responsibilities
of the Ministry of Finance
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2. Cooperate with equitized enterprises,
organization in dealing with issues incurring during the sale of shares,
management and use of the proceeds from equitization.
3. Assign the State Securities Commission of
Vietnam to formulate and issue regulations on public auction and share auction
among strategic investors as regulated.
Article 22. Responsibilities
of investors
Investors subscribing for shares, including
strategic investors, must comply with regulations on the right to purchase
shares, share auction regulations and regulations in this Circular.
Article 23. Effect
1. This Circular comes into force from June 16,
2018 and replaces Circular No.196/2011/TT-BTC dated December 26, 2011 of the
Ministry of Finance guiding initial offering of shares, management and use of
proceeds from equitization of wholly state-owned enterprises; Circular
No.115/2016/TT-BTC dated June 30, 2013 of the Ministry of Finance providing
guidelines for the mechanism for management and use of the Business Arrangement
Support Fund of parent companies of economic corporations, state corporations
and parent companies in groups of parent companies and subdiaries. This
Circular abolishes guiding documents of the Ministry of Finance relating to the
proceeds from equitization against regulations in this Circular.
2. Enterprises have their equitization plans
approved by competent authorities before the day on which Decree
No.126/2017/ND-CP comes into force may continue to sell their shares according
to the approved equitization plan. The management and preparation of final
accounts of the proceeds from equitization at the official date of equitization
must comply with regulations in Decree No.126/2017/ND-CP and guidelines
provided in this Circular.
3. Timely inform the Ministry of Finance if there
is any question arising during the implementation.
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PP. MINISTER
DEPUTY MINISTER
Tran Van Hieu