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.
If the revenue earned from equitization of the level II enterprise fails to pay for expenses when such enterprise is equitized (equitization expenses, expenses for redundancy policies or incentives for employees), the parent company shall offset the inadequate amount the and add it to finance expenses of the parent company.
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.
b) Provide guidelines, carry out inspections and supervision of the equitization process for organizations stated herein.
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.
l) Direct equitized enterprises to prepare documents and transfer state capital ownership at JSCs (after converted from state-owned enterprises) to the State Capital Investment Corporation.
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:
- Assist authorities deciding equitization in directing and carrying out equitization for one or some enterprises stated herein to:
- 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.
- Verify and request the representative authority to select equitization consulting firms, choose auctioneering organizations, publish the enterprise value or adopt equitization plans.
- 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.
5. The labor union of the equitized enterprise shall cooperate with the steering committee in:
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
a) Establish the steering committee and assistance team.
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.
Tìm kiếm
Nghị định 126/2017/NĐ-CP (Bản Word)
Nghị định 126/2017/NĐ-CP (Bản Pdf)