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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
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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 discounted 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.