Chương 2 Nghị định 151/2013/NĐ-CP: Quản lý và đầu tư kinh doanh vốn nhà nước

Chapter II

MANAGEMENT AND INVESTMENT OF STATE CAPITAL

Section 1. RECEIPT OF THE RIGHTS OF THE STATE OWNER REPRESENTATIVE IN ENTERPRISES

Article 7. Receipt of the rights of the state owner representative by the Corporation

1. The Corporation shall receive the rights of the state owner representative in the following types of enterprises (excluding enterprises mainly providing public-utility products and services, enterprises directly serving national defense and security, and cases in which enterprises are assigned by the Prime Minister to other agencies):

a/ Single-member state limited liability companies transformed from independent state companies, or newly established and attached to ministries, ministerial-level agencies or provincial-level People’s Committees;

b/ Limited liability companies with two or more members transformed from independent companies with 100% state capital, or newly established and attached to ministries, ministerial-level agencies or provincial-level People’s Committees;

c/ Joint-venture companies with state-contributed capital for which ministries, ministerial-level agencies or provincial-level People’s Committees act as owner representatives;

d/ Joint-stock companies transformed from independent companies with 100% state capital, or newly established and attached to ministries, ministerial-level agencies or provincial-level People’s Committees;

dd/ For economic groups, corporations and other cases, the transfer of the rights of the state owner representative to the Corporation complies with decisions of the Prime Minister.

2. The Corporation shall fully reflect the value of state-contributed capita] in enterprises it has received according to the value of capital determined in the written records of the handover of the rights of the state owner representative between the parties.

3. Ministries, ministerial-level agencies or provincial-level People’s Committees shall transfer the rights of the state owner representative in enterprises defined in Clause 1 of this Article to the Corporation immediately after these enterprises are completely equitized, or transformed into limited liability companies.

4. The Ministry of Finance shall guide the transfer of the rights of the state owner representative in enterprises to the Corporation.

Article 8. Valuation of received capital amounts

1. The Corporation shall, or hire licensed valuation organizations to, valuate received state capital at market prices as the basis for the management, supervision, and assessment of the effectiveness of management of, capital by the Corporation, and payment of achievement-based bonuses under this Decree.

2. Received state capital must be valuated as follows:

a/ For listed enterprises that have successful trading prices for reference, it is the average price during the period of three months at most preceding the date of receipt;

b/ For other enterprises, it is the value of equity reflected on the financial statement made at the time closest to the time of receipt.

3. State capital transferred to the Corporation must be valued within 30 working days from the date of capital receipt by the Corporation. For state capital received by the Corporation before this Decree takes effect, the Corporation shall value it within 90 working days after this Decree takes effect, with the time of valuation being the effective date of this Decree.

4. Expenses related to the valuation of state capital may be accounted as business expenses of the Corporation.

Section 2. MANAGEMENT OF STATE CAPITAL AFTER RECEIPT

Article 9. Making of dossiers and classification of enterprises after receipt

1. After receiving the rights of the state owner representatives for state-contributed capital in enterprises, the Corporation shall compile dossiers for these enterprises, and classify enterprises into groups as the basis for application of appropriate measures to manage state capital invested in each enterprise.

2. The Members’ Council of the Corporation shall issue criteria for and methods of classification of enterprises with state capital transferred to the Corporation, for exercising the representative’s rights.

Article 10. Analysis and assessment of, and making of plans on restructuring state capital in, enterprises

1. The Corporation shall analyze and assess the situation of enterprises it has received, so as to work out plans and measures for restructuring, and raising the governance effectiveness of, each enterprise.

2. The Corporation shall base itself on classification results, plans and measures for restructuring each enterprise to implement these measures to raise the operational effectiveness and sell part of state capital in enterprises which the State does not need to hold, on the principles paid down in this Decree.

Article 11. Management of state capital invested in enterprises

The Corporation shall directly manage state capital or manage it through the system of representatives under the Regulation on management of state capital invested in enterprises and the Regulation on representatives issued by its Members’ Council.

Section 3. SALE OF STATE CAPITAL

Article 12. Principles of sale of state capital

1. Complying with the criteria and classification list of state enterprises decided by the Prime Minister and capital sale plans issued by the Members’ Council.

2. Preserving and developing the value of state capital assigned to the Corporation.

3. Ensuring publicity, transparency and lawfulness, and facilitating the development of enterprises.

4. Determining reserve prices for the sale of state capital which fully reflect the actual value of state capital in enterprises, including also the value of the rights to use land allocated under law.

Article 13. Forms of sale of state capital

The Corporation shall apply the forms of sale of state capital as prescribed by current laws and its charter, including:

1. Modes of transaction on the stock exchanges.

2. Public auction.

3. Competitive offering.

4. Sale upon agreement as prescribed at Point dd, Clause 4, Article 14 of this Decree.

5. Other forms of sale as prescribed by law.

Article 14. Mechanism of sale of state capital

The Corporation shall apply the mechanism of sale of state capital as prescribed by current regulations of the State and its charter, specifically:

1. Sale of the Corporation’s capital in enterprises for which it has received the state owner’s rights aims to further equitize, or reduce state capital in, enterprises which the State does not need to own. It is not sale of capital of founding shareholders and does not have to comply with regulations on public offering of securities.

2. The Corporation may auction the whole lot of shares after it is so approved by its Members’ Council to assure success when it is necessary to sell all capital in an enterprise.

3. The Corporation may give incentives to consultancy, brokering and securities companies for their achievements and effectiveness recorded in the sale of its capital.

4. For unlisted enterprises, the Corporation shall sell their capital under current regulations of the State and the following provisions:

a/ It may publicly auction part of the shares it intends to sell, and sell the remainder (no more than 70% of the shares to be sold) according to agreements with employees or to strategic shareholders at a price not lower than the lowest successful bid;

b/ If the auction fails, the Corporation may decide to adjust the reserve price for another auction. The reserve price may be reduced for no more than three times with an interval not exceeding 2 months between two auctions. The maximum reduction is 10% of the reserve price of the previous auction.

In special cases in which the value of the company is abnormally affected such as there is a decision of a competent agency on land use rights or the enterprise faces major business risks, the Corporation may take the initiative in re-determining the reserve price to fully reflect all changing factors in the value of shares.

c/ For enterprises operating at a loss which have been put up for public auction but have no one offering a bid higher than or equal to their par value, the Corporation may reduce their reserve price to be lower than their par value in order to retrieve as much as possible the capital invested by the State in these enterprises;

d/ For auctioning shares with a total value calculated according to their par value lower than VND 10 billion, or shares of enterprises operating at a loss which have a value of VND 10 billion or more calculated according to their par value, this may be conducted through securities companies or by the Corporation itself;

dd/ The form of sale upon agreement may be applied in the following cases:

- Sale upon agreement in case of unsuccessful auction or successful auction of only part of state capital at a price not lower than the reserve price;

- Sale upon agreement of shares of successful bidders who abandon their deposits, at a price not lower than the lowest successful bid;

- Sale upon agreement in case the purchaser is a state-owned single-member limited liability company on the principle of capital preservation according to plans approved by the Ministry of Finance;

- Agreement on the swapping of shares and contributed capita] owned by the Corporation in enterprises according to plans approved by the Ministry of Finance;

- Sale upon agreement as directed by the Prime Minister;

- Other cases as prescribed by law.

Article 15. Competence to decide on sale of state capital

1. The Corporation may take the initiative in selling state capital in enterprises which the State does not need to hold under the Prime Minister’s Decision on classification of enterprises and the list of enterprises which the State does not need to hold.

2. For the sale of state capital in enterprises on the list of those in which the State holds controlling shares:

a/ The Corporation may consider and decide on the sale that still ensures the percentage of shares more than 50% of charter capital of enterprises;

b/ The Corporation shall report to the Ministry of Finance for submission to the Prime Minister for consideration and decision on the sale that fails to ensure the percentage of shares more than 50% of charter capital of enterprises.

3. Pursuant to current laws and this Decree, the Members’ Council of the Corporation shall issue the Regulation on sale of state capital in enterprises managed by the Corporation.

Section 4. INVESTMENT OF CAPITAL OF THE CORPORATION

Article 16. Principles of capital investment

1. The Corporation may take the initiative in using business capital sources for investment in projects, fields and sectors, ensuring the following principles:

a/ Complying with current laws;

b/ Conforming with development strategies, master plans and plans of the Corporation already approved by competent authorities;

c/ Ensuring effective investment;

d/ Conforming with the capital-balancing capacity of the Corporation.

2. For important infrastructure works and projects in which the State should support investment, the Corporation may participate in the capacity as financial investor and raise domestic and foreign capital for their implementation.

3. The level of investment capital in the fields specified in Clause 4, Article 17 of this Decree must not exceed 30% of total investment according to annual plans.

Article 17. Investment fields and forms

1. Investment in projects, groups, corporations, or parent companies operating in the key economic sectors in which the State needs to hold the controlling right.

2. Investment in the key fields according to the tasks assigned by the Government and Prime Minister with capital sources provided by the Government or balanced by the Corporation itself.

The Corporation shall separately monitor designated investments for socio-political purposes.

3. Supplementary investment in enterprises with capital of the Corporation.

4. Investment of capital in projects, sectors and fields that will bring about economic benefits:

a/ Contribution of capital to establishment of new enterprises, joint ventures, associated undertakings, purchase of part of assets or the whole of other enterprises;

b/ Purchase or sale of shares, bonds and other financial instruments;

c/ Joint investment with or investment entrusted to financial institutions and investment funds;

d/ Offshore direct or indirect investment;

dd/ Other forms of investment as prescribed by law.

Article 18. Competence to decide on investment

1. The Corporation may decide on investment in group-A and group-B projects on the basis of the list annually approved by the Ministry of Finance.

2. The Corporation may take the initiative in deciding on investment in projects other than those specified in Clause 1 of this Article in accordance with law, while ensuring resources for implementing group-A and group-B projects already approved by the Ministry of Finance.

3. The Corporation may not invest in or contribute capital to other enterprises in which its managers or executive officers are spouses, parents, children or siblings of the members of the Members’ Council, controllers, members of the Board of Directors and chief accountants of these enterprises.

Article 19. Withdrawal of investment capital

The Corporation may take the initiative in transferring or selling its contributed capital in enterprises or projects on the principles of effectiveness, preservation and development of invested capital and lawfulness.

Particularly for investments designated by the Government or the Prime Minister, the Corporation may withdraw them only after obtaining approval from the Government or the Prime Minister.

Section 5. EXERCISE OF THE RIGHTS AND PERFORMANCE OF THE RESPONSIBILITIES AND OBLIGATIONS OF THE STATE OWNER TOWARD ENTERPRISES BEING SINGLE-MEMBER LIMITED LIABILITY COMPANIES IN WHICH THE CORPORATION HOLDS 100% CHARTER CAPITAL

Article 20. Rights and responsibilities of the Corporation

1. To decide on establishment, objectives, tasks and business lines, reorganization, ownership transformation, dissolution and bankruptcy claim; and contribution of capital to other enterprises.

2. To approve, amend and supplement their charters.

3. To decide on charter capital investment, adjustment and transfer of part or the whole of charter capital.

4. To decide on the organizational structures of company management, appoint, re-appoint, relieve from duty, approve the resignation of, sign or terminate contracts with, commend, reward, and discipline chairpersons and members of the Members’ Councils or company presidents, controllers and directors general (directors) of the companies.

5. To decide on production and business strategies and plans, and development investment plans.

6. To approve in principle investments, purchase and sale of assets, borrowing and lending contracts.

7. To issue regulations on the financial regime, profit distribution, setting up and use of various funds, and approve annual financial statements.

8. To issue regulations on the recruitment, wages and bonuses; to decide on salaries of chairpersons and members of the Members’ Councils or company presidents, controllers and directors general (directors) of the companies.

9. To decide on solutions for market development, marketing and technology; to issue regulations on the mechanism of task assignment and participation in the provision and assurance of public-utility and essential products and services of the economy.

10. To supervise, examine and inspect the observance of law; to assess the achievement of objectives and assigned tasks, results of operation and effectiveness of production and business; to manage, use, preserve and develop capital of the companies. To assess the performance of chairpersons and members of the Members’ Councils or company presidents, controllers, directors general (directors), deputy directors general (deputy directors) and chief accountants of the companies.

11. Other rights as prescribed by law.

Article 21. Obligations of the Corporation

1. To invest sufficient charter capital for the companies.

2. To observe the company charters.

3. To take responsibility for debts and other asset liabilities of the companies within the limits of charter capital of the companies, to determine and separate assets of the owner from those of the companies.

4. To observe law when approving in principle investments, purchase and sale of assets and borrowing and lending contracts of the companies.

5. To guarantee the companies’ right to do lawful business.

6. To perform other obligations as prescribed by law.

Section 6. EXERCISE OF THE RIGHTS AND PERFORMANCE OF THE OBLIGATIONS OF THE OWNER OF STATE CAPITAL INVESTED IN OTHER ENTERPRISES

Article 22. Rights and obligations of the Corporation toward enterprises in which the Corporation holds over 50% of charter capital

1. To decide on the contribution of capital and transfer of state capital invested in the enterprise; to exercise the rights of shareholders or capital contributors in accordance with law and the enterprise’s charter; to take responsibility for debts and other asset liabilities of the company within the limits of capital contributed by the Corporation to the enterprise.

2. To appoint representatives to exercise the rights of shareholders or capital contributors; to relieve from duty, commend and reward, or discipline representatives; to decide on bonuses, allowances and other benefits of representatives; to assess the performance of representatives.

3. To request representatives to perform assigned tasks under Clause 4 of this Article, unless otherwise provided by the enterprise’s charter; to make regular or irregular reports on the investment, finance and effectiveness of state capital use, and business results of the enterprise.

4. The Corporation shall give written opinions for representatives to vote on the following issues related to the enterprise:

a/ Objectives, tasks and business lines, reorganization, dissolution and bankruptcy claim of the enterprise;

b/ The charter and its amendments and supplements;

c/ Increase or decrease of charter capital; time and methods of raising capital; types of shares and total number of shares of each type eligible for offering; re-purchase of over 10% of total number of sold shares of each type;

d/ Nomination for election, proposal on relief from duty, removal from office, commendation and reward, or handling of violations of members of the Members’ Council, chairperson of the Board of Directors, chairperson of the Members’ Council, and members of the Control Board. Nomination for appointment, proposal on relief from duty, signing or termination of contracts with the director general (director) of the enterprise. Remuneration, bonus and other benefits of the members of the Board of Directors, members of the Members’ Council, members of the Control Board, director general (director) of the enterprise; number of members of the Members’ Council, members of the Control Board, and deputy directors general (deputy directors) of the enterprise;

dd/ Production and business strategies and plans and five-year and annual development investment plans of the enterprise; annual lists of group-A and group-B investment projects;

e/ In-principle approval of capital contribution, holding, increase 01' decrease of investment capital in other enterprises in accordance with the charter of the enterprise, establishment, reorganization and dissolution of branches, representative offices and other dependent cost-accounting units; receipt of enterprises that voluntarily join the enterprise as subsidiary or associated companies;

g/ In-principle approval of purchase and sale of assets and borrowing or lending contracts with a value equal to or more than 50% of charter capital of the enterprise or a lower percentage determined in the enterprise’s charter; in-principle approval of the enterprise’s borrowing of foreign loans;

h/ Financial statements, profit distribution, setting up and use of funds, and annual dividends;

i/ The regime of recruitment; the regime of remuneration, salary and bonus of the enterprise.

5. To request representatives to make reports for regular supervision and examination and inspection of the observance of law according to regulations; the management, use, preservation and development of state capital in the enterprise; implementation of strategies and plans; assessment of the achievement of objectives and assigned tasks, results of operation, and effectiveness of production and business.

Article 23. Rights and obligations of the Corporation toward enterprises of which the Corporation holds no more than 50% of charter capital

1. To decide on the contribution of capital and transfer of state capital invested by the Corporation in the enterprise; to exercise the rights of shareholders or capital contributors in accordance with law and the enterprise’s charter; to take responsibility for debts and other asset liabilities of the enterprise within the limits of capital contributed by the Corporation to the enterprise.

2. To appoint representatives to exercise the rights of shareholders or capital contributors; to relieve from duty, commend, reward or discipline representatives in the enterprise; to decide on bonuses, allowances and other benefits of representatives; to assess the performance of representatives.

3. To request representatives to perform assigned tasks under Clause 4 of this Article, unless otherwise provided by the enterprise’s charter; to make regular or irregular reports on the investment, finance and effectiveness of state capital use, and business results of the enterprise.

4. The Corporation shall give written opinions for representatives to vote on the following issues related to the enterprise:

a/ Objectives, tasks and business lines, reorganization, dissolution and bankruptcy claims of the enterprise;

b/ The charter and its amendments and supplements;

c/ Increase or decrease of charter capital; time and methods of raising capital; types of shares and total number of shares of each type eligible for offering; redemption of over 10% of total number of sold shares of each type;

d/ Nomination for election, proposal on relief from duty, removal from office, commendation and reward, or handling of violations of members of the Members’ Council, chairperson of the Board of Directors, chairperson of the Members’ Council, and members of the Control Board. Nomination for appointment, proposal on relief from duty, signing or termination of contracts with the director general (director) of the enterprise. Remuneration, bonus and other benefits of the members of the Board of Directors, members of the Members" Council, members of the Control Board, director general (director) of the enterprise; number of members of the Members’ Council, members of the Control Board, deputy directors general (deputy directors) of the enterprise;

dd/ Production and business strategies and plans and five-year and annual development investment plans of the enterprise;

e/ In-principle approval of establishment of subsidiary companies; establishment, reorganization and dissolution of branches and representative offices;

g/ In-principle approval of investment, purchase and sale of assets and borrowing or lending contracts with a value equal to or more than 50% of the total value of assets written in the latest financial statement of the enterprise, or a lower percentage determined in the enterprise’s charter;

h/ Annual financial statements, profit distribution, setting up and use of funds, and annual dividends.

5. To request representatives to make reports for regular supervision and examination and assessment of the effectiveness of the use of the Corporation’s capital in the enterprise.

Section 7. REPRESENTATIVES OF STATE CAPITAL INVESTED IN OTHER ENTERPRISES

Article 24. Mode of management of state capital invested in enterprises

1. The Corporation shall directly manage state capital in enterprises or manage it through the system of representatives in accordance with current laws, its charter and the Regulation on representatives issued by its Members’ Council.

2. Forms of appointment or authorization of representatives:

a/ The Corporation shall appoint or authorize representatives through issuing decisions on authorization of representatives for the Corporation’s capital in enterprises;

b/ For cases in which the Corporation neither appoints nor authorizes capital representatives, it shall directly exercise the rights and perform the obligations of shareholders, capital contributors or joint-venture parties in enterprises in accordance with the Law on Enterprises;

c/ Other forms of authorization according to the Corporation’s Regulation on representatives.

Article 25. Standards and conditions on representatives of state capital invested in other enterprises

Representatives of the Corporation’s capital invested in other enterprises must fully satisfy the standards and conditions prescribed by law and the Corporation’s charter and Regulation on representatives.

Article 26. Rights and obligations of representatives

Representatives shall exercise the rights and perform the obligations as prescribed by law and the Corporation’s Regulation on representatives.

A representative who fails to properly exercise the rights and perform the obligations as directed by the Corporation, thus causing losses and damage to the Corporation, shall be handled for his/her violations, have his/her authorization terminated, and pay compensations to the Corporation in accordance with law.

Article 27. Policies toward representatives after sale of all state capital in enterprises

1. For representatives who are officials of the Corporation, the Corporation shall apply labor regimes as prescribed by the labor law and its regulations.

2. For representatives who are officials of enterprises, the Corporation shall notify the termination of their capital representation to the enterprises for the latter to apply labor regimes as prescribed by the labor law and their regulations.

3. For representatives who are officials appointed by ministries, sectors or provincial-level People’s Committees to work on a part-time basis in enterprises before transfer, the Corporation shall coordinate with these ministries, sectors or provincial-level People’s Committees in arranging and applying the labor regimes as prescribed by the labor law and the enterprises’ regulations.

Article 28. Pilot mechanism of raising responsibility of representatives of the Corporation

The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Home Affairs and the Ministry of Labor, War Invalids and Social Affairs in, working out and reporting to the Prime Minister for decision the pilot mechanism of performance of the state owner rights in enterprises with large state capital which the Corporation intends to hold for a longer term, on the following principles:

- The Corporation shall directly appoint, authorize, or relieve from duty representatives in the enterprises; pay salaries and bonuses to them based on their performance of assigned tasks.

- Clearly defining the responsibilities and interests of representatives in the performance of tasks assigned by the Corporation.

- The Corporation may form salary and bonus funds for representatives from their incomes in the enterprises according to the pilot mechanism stated in this Article, and from deductions from dividends and distributed profits from the state capital received by the Corporation. The specific deduction from dividends and distributed profits comply with regulations of the Ministry of Finance.

The above salary and bonus fund shall be used to pay salaries, bonuses and other benefits to representatives in enterprises according to regulations.