Chương 4 Nghị định 187/2004/NĐ-CP: Bán cổ phần và quản lý, sử dụng tiền bán phần vốn nhà nước tại doanh nghiệp

Chapter IV.

SALE OF SHARES, AND MANAGEMENT AND UTILIZATION OF PROCEEDS OF SALE OF PORTION OF STATE OWNED CAPITAL IN [EQUITIZED] ENTERPRISES

Section 1. INITIAL SALE OF SHARES

Article 26. Who may purchase initial shares

1. Employees of the enterprise.

2. Strategic investors being domestic investors such as producers and regular suppliers of raw materials to the enterprise; people who undertake to purchase the products of the enterprise on a long-term basis; people closely connected to the long-term strategic business interests [of the enterprise], with financial potential and management capability.

When an enterprise undergoing equitization formulates its equitization plan, such enterprise may select strategic investors and submit a list of them for approval to the agency which made the decision on equitization.

3. Other investors (including foreign investors).

Article 27. Initial share structure

1. Shares which the State shall hold.

2. Shares for sale at incentive rates for the employees of the enterprise as provided for in article 37 of this Decree.

3. Strategic investors shall be permitted to purchase a maximum of twenty (20) per cent of the number of shares for sale at incentive rates. The level of shares which may be sold to each strategic investor shall be implemented in accordance with the equitization plan approved by the agency which made the decision on equitization.

4. The initial shares to be sold at a publicly announced price to investors shall not be less than twenty (20) per cent of charter capital (including shares purchased additionally to incentive shares by strategic investors and employees of the enterprise).

Article 28. Selling price of initial shares

1. The selling price of incentive shares to employees of an enterprise shall be a reduction of forty (40) per cent compared to the average auction price.

2. The selling price of incentive shares to strategic investors shall be a reduction of twenty (20) per cent compared to the average auction price.

3. The selling price to entities prescribed in article 27.4 of this Decree shall be the successful auction bid of each such investor.

Article 29. Value of incentives to strategic investors and employees of an equitized enterprise

The total value of incentives to employees of an equitized enterprise and to strategic investors shall be taken from additional funding collected from share auctions, and if there is a deficiency then it shall be deducted from the portion of State owned capital in the equitized enterprise but shall not exceed the portion of State owned capital in the equitized enterprise after deducting shares held by the State and equitization expenses.

Article 30. Methods of holding initial share auction

1. Auction directly at the enterprise in the case of an enterprise undergoing equitization with a volume of shares for sale of one billion Vietnamese dong or less (the enterprise shall itself hold the share sale auction).

2. Auction at an intermediary financial organization in the case of an enterprise undergoing equitization with a volume of shares for sale above one billion Vietnamese dong.

In the case of an enterprise undergoing equitization with a volume of shares for sale above ten (10) billion Vietnamese dong, an auction shall be held at a Securities Trading Centre in order to attract investors.

The agency which made the decision on equitization of the State owned company shall make a selection in order to hire auctioneering organizations.

3. In the case of an enterprise in a remote area where there is no intermediary financial organization available to take on the sale of shares, the agency which made the decision on equitization shall reach agreement with the Ministry of Finance on a sale method.

Article 31. Order for holding initial share auction

1. At least twenty (20) days prior to the auction, the organization holding the auction (the enterprise, or an intermediary financial organization, or a Securities Trading Centre) must make a public announcement at the enterprise, at the place where the auction will be held, and on the mass media about the time, location, form of sale, conditions for participation, number of shares proposed to be sold and other issues relevant to the share auction.

2. The auction to other investors shall be held in accordance with the methods prescribed in article 30 of this Decree.

3. The average auction price shall be determined in order to calculate the incentive price for strategic investors and employees of the enterprise.

4. There shall be distribution and sale of shares to each strategic investor and employee of the enterprise.

5. The enterprise must complete the sale of shares within a time-limit of four months from the date of the decision approving the equitization plan. If the shares are not all sold, then the enterprise shall report to the agency authorized to make the decision on equitization in order for the latter to adjust the scale or structure of charter capital in the equitization plan and to implement conversion of the State owned company into a shareholding company.

Article 32. Business registration by the shareholding company

After completion of the sale of shares and after holding a general meeting of shareholders correctly in accordance with the Law on Enterprises, the equitized enterprise must conduct business registration pursuant to Decree No. 109-2004-ND-CP of the Government dated 2 April 2004 on business registration.

Article 33. Ensuring public notification and transparency of information, listing on the securities market

1. An equitized enterprise must provide publicly notified financial statements to its shareholders and to the administrative agency correctly in accordance with the Law on Enterprises and other laws.

2. The State shall have a preferential policy in favour of equitized enterprises which satisfy the conditions for immediate listing on the securities market.

Article 34. Management of portion of State owned capital in a shareholding company

1. The portion of State owned capital in a shareholding company shall be managed in accordance with the law on management of the portion of State owned capital invested in other enterprises.

2. In the case of equitized enterprises not in the category of those in which it is necessary for the State to be the controlling shareholder, then depending on the particular conditions, the agency representing the owner of the portion of State owned capital in the shareholding company shall have the right to make decisions to on-sell the State shares in the shareholding company in accordance with current law and the charter of the shareholding company.

Article 35. Management and utilization of proceeds from equitization of a State owned company

The proceeds which the State collects from equitization of a State owned company (comprising proceeds from the sale of the portion of State owned capital and the difference being an increase resulting from the auction of additionally issued shares in an equitized enterprise), after deducting equitization expenses shall be used for the following purposes:

1. To assist the equitized enterprise to implement the policies applicable to people who were employees at the time of equitization;

(a) To assist the enterprise to pay subsidies to employees who cease work or lose their job upon conversion of the State owned company into the shareholding company.

(b) To assist the enterprise to train employees of the equitized enterprise so as to assign them to new work in the shareholding company.

2. The remaining sum of money shall be managed and used as follows:

(a) In the case of equitization of a member of a State owned corporation or equitization of a section of an independent State owned company, then such State owned corporation or independent State owned company shall use the proceeds for business operations and to assist equitized enterprises to continue to resolve the issue of retrenched employees in accordance with article 36.8 of this Decree;

(b) In the case of equitization of the whole of an independent State owned company or the whole of a State owned corporation, the remaining sum of money shall be transferred to the Assistance Fund for Restructure of Enterprises at the Ministry of Finance for investment in companies in which it is necessary for the State to hold one hundred (100) per cent of capital but which lack capital, in shareholding companies in which the State is the controlling shareholder where the State capital in such equitized enterprise is insufficient to ensure the full number of State shares, and to assist equitized enterprises to continue to resolve the issue of retrenched employees in accordance with article 36.8 of this Decree. The remaining sum of money shall be invested in enterprises via the State Capital Business and Investment Corporation.