Chương IV Nghị định 126/2017/NĐ-CP: Bán cổ phần lần đầu và quản lý, sử dụng tiền thu từ cổ phần hóa

Chapter IV

INITIAL OFFERING, MANAGE AND USE OF REVENUE EARNED FROM EQUITIZATION

Article 33. Determination of charter capital and first share structures

1. According to the state capital value stated in accounting records of the equitized enterprise and business plans in the following years after it is converted into the JSC, the representative authority shall decide the scale of the charter capital as follows:

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.

d) Shares offered to strategic investors (if any) stated in Clause 3 Article 6 herein.

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.

The underwriting services provided for foreign investors shall ensure conformity with regulations of law on the rights to purchase or contribute capital of foreign investors in Vietnamese enterprises.

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.

4. If part of the shares offered in the public auction has been sold, the unsold shares (including the number of shares rejected by successful bidders) shall be dealt with as follows:

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.

c) Within 20 days from the deadlines for payment by the bidders, the steering committee shall direct the enterprise to complete the sale of shares in accordance with the provision of Clause 4 Article 37. Within 5 days from the deadlines for payment, the steering committee shall direct the enterprise to transfer the revenue earned from such sale of shares to the Enterprise Assistance and Development Fund.

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:

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.

5. The representative authority shall direct the steering committee and the equitized enterprise to report fully and promptly the management and use of receivables from the equitization to the Ministry of Finance.

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.