Chapter II
CORPORATE RESTRUCTURING
Article 4. Principles
1. The restructuring plan is implemented on the principle of consensus between the agency representing the owner of the restructured enterprise and the Vietnam Debt and Asset Trading Company (hereinafter referred to as DATC) and/or creditors participating in the restructuring (making a Memorandum of Understanding between the parties). DATC has the right to actively negotiate debt purchase with creditors and propose the corporate restructuring plan in accordance with laws and regulations.
2. DATC decides to buy debts and assets only after reaching agreement with the owner's representative agency and obtaining results of negotiation over debt purchase with the creditors of the restructured enterprises. Debt trading plans for corporate restructuring must ensure feasibility, effective capital recovery and sufficient difference between the cost of debt purchase and the book value of the debt for financial disposition and successfully transformation into a joint stock company according to laws and regulations.
3. If the debt purchase plan for corporate restructuring is not feasible and effective, the Steering Committee on Equitization/Restructuring shall counsel the owner's representative agency to consider deciding another method of transformation according to regulatory provisions.
4. In addition to the regulations laid down in this Circular, restructuring enterprises, DATC and other relevant agencies shall comply with the provisions of Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Decree No. 129/2020/ND-CP and other supplementary documents (if any).
Article 5. Procedures
The corporate restructuring procedures for transformation into the joint stock company specified in Appendix 1 to this Circular shall comprise the following basic steps:
1. Building restructuring plans
a) Implement the plan for transformation into the joint stock company:
- Establish the Steering Committee on Equitization/Restructuring and the Assistant Team.
- Prepare documents and records.
- Approve the equitization cost estimate, make decision to choose an equitization consultant.
- Carry out the financial inventory, handle financial issues and take charge of corporate valuation according to the provisions of Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Circular providing instructions of the Ministry of Finance and written documents stating amendments and supplements (if any).
- Decide and announce corporate value.
- Decide whether the request for participation of DATC and other creditors in the restructuring process is made.
b) Prepare the complete restructuring plan for submission to the owner's representative agency for approval.
2. Implementing the restructuring plan.
3. Finishing transformation into the joint stock company.
a) Hold the first General Meeting of Shareholders and seek enterprise registration;
b) Carry out the final settlement and transfer process involving the restructured enterprise and the joint-stock company.
Article 6. Financial disposition of structured enterprises
1. Financial disposition in the process of corporate valuation
Restructured enterprises shall carry out the financial disposition during the corporate valuation process as per the Decree No. 126/2017/ND-CP, the Decree No. 140/2020/ND-CP and Circular No. 46/2021/TT-BTC dated June 23, 2021 of the Ministry of Finance, providing several instructions about regulations on financial disposition and business valuation during the process of transformation of state enterprises and single-member limited liability companies with 100% of their charter capital wholly held by state enterprises into joint-stock companies (hereinafter referred to as Circular No. 46/2021/TT-BTC) and written documents stating amendments and supplements thereto (if any).
2. Financial disposition according to the restructuring plan
a) Financial disposition principles:
- The financial disposition at the restructured enterprise must be associated with the restructuring plan approved by the owner's representative agency. Reduction in debt repayment obligations must be attached to the fact that DATC converts debts and assets into contributed capital in the enterprise and does not change the liabilities of organizations or individuals that have caused financial losses before.
- Ensure public disclosure, transparency and compliance with law. In case where relevant organizations and individuals involved in the financial disposition process fail to strictly comply with regulations, thus causing loss of capital and assets, such organizations and individuals shall be responsible for paying compensation and being sanctioned in accordance with laws and regulations.
b) Activities involved in the financial disposition process:
- At the time of business valuation, based on the restructuring plan that the owner's representative agency has approved:
+ DATC considers the deduction for debt repayment obligations which does not exceed the negative difference between equity according to the representative agency’s decision on business valuation and the deduction for the obligations to pay debts of other creditors (if any), and the difference between the book value of the purchased debt and the cost of debt purchase till the time of decision to reduce debt repayment obligations;
+ Other creditors decide to reduce debt repayment obligations for the restructured enterprise as agreed between the parties.
- During the period from the date of business valuation to the date of official transformation into the joint stock company, the restructured enterprise shall continue to take financial disposition actions according to laws and regulations. Including the followings:
+ Generated profits are distributed according to current regulations applied to enterprises in which 100% of charter capital is held by the State.
+ The structured enterprise shall fulfill financial obligations (if any) to the state budget in accordance with current legislation.
+ In case of loss, the agency representing the owner shall direct the restructured enterprise to clarify the causes and responsibilities of the concerned collectives and individuals in order to consider remedial or compensation measures according to regulations. Meanwhile, if there is the surplus produced from the positive difference between the debt purchase cost and the book value of the debt, DATC and the creditors participating in the restructuring process may continue to offset such surplus against part of debt repayment obligations with respect to the remaining loss.
Article 7. Conversion of debts into contributed capital and initial sale of shares
1. DATC and creditors participating in the corporate restructuring process may convert debts/loans into share capital according to the agreement principles and the consent from the owner’s representative agency in the restructuring plan.
2. Restructured enterprises shall follow the order, procedures and use the sale method and the price applied to the initial sale of shares as per the Decree No. 126/2017/ND-CP, the Decree No. 140/2020/ND-CP and the Circular No. 32/2021/TT-BTC dated May 17, 2021 of the Ministry of Finance, providing instructions about initial sale of shares, management and utilization of proceeds from equitization of state enterprises and wholly state-owned enterprises transformed into joint-stock companies (hereinafter referred to as Circular No. 32/2021/TT-BTC) and written documents stating amendments and supplements thereto (if any). The owner’s representative agency shall decide to sell shares to staff members of restructured enterprises at the price which is not lower than 60% of the face value of shares as per clause 3 of Article 42 in the Decree No. 126/2017/ND-CP.
Article 8. Management of unsold shares
Restructured enterprises shall deal with the number of unsold shares in accordance with the Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP and Circular No. 32/2021/TT-BTC. Including the followings:
1. In case of failure to sell all shares to investors by the agreement method after unsuccessful public auction or failure to sell all shares offered for sale at public auctions as prescribed in Clause 3 and Clause 4 of Article 8 in the Circular No. 32/2021/TT-BTC, the Equitization/Restructuring Steering Committee will consider deciding to offer to sell these unsold shares to DATC and creditors on the principle of agreement at the price which is not lower than their par value.
2. In case where DATC and creditors still do not buy all the shares on offer as prescribed in Clause 1 of this Article, the Steering Committee on Equitization/Restructuring shall counsel the owner’s representative agency to adjust the scale and charter capital structure to transform the restructured enterprise into the joint stock company before the first General Meeting of Shareholders to be held.
Article 9. Responsibilities of the Steering Committee on Equitization/Restructuring
The Steering Committee on Equitization/Restructuring shall carry out the rights and responsibilities stipulated in the Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Circular No. 32/2021/TT-BTC and Circular No. 46/2021/TT-BTC, including:
1. Help the owner's representative agency or the enterprise with 100% charter capital held by the State (hereinafter referred to as tier-1 enterprise) when the restructured enterprise that is an enterprise of which 100% charter capital is held by the tier-1 enterprise (hereinafter referred to as tier-2 enterprise) directs and undertakes the transformation of the restructured enterprise into the joint stock company.
2. Review and seek consent from the owner's representative agency or tier-1 enterprise (in case the restructured enterprise is a tier-2 enterprise) to the restructuring plan according to the provisions of this Circular.
3. Counsel the owner's representative agency or tier-1 enterprise (in case the restructured enterprise is a tier-2 enterprise) to approve of expenses for conversion, payments for redundant employees, downsizing of payroll and payable proceeds from equitization/restructuring.
4. Inspect and supervise the implementation of the restructuring plan according to the provisions of this Circular and relevant guiding documents.
Article 10. Responsibilities of the owner’s representative agencies or tier-1 enterprises
The owner's representative agency or tier-1 enterprise (in case where the restructured enterprise is a tier-2 enterprise) shall exercise the rights and responsibilities as prescribed in Decree No. 126/2017/ND-CP, Decree No. No. 140/2020/ND-CP, Circular No. 32/2021/TT-BTC and Circular No. 46/2021/TT-BTC, including:
1. Instruct the restructuring enterprise to coordinate with DATC and creditors to conduct an assessment survey on the current situation of the enterprise under consideration before participating in the restructuring.
2. Reach agreement with DATC and creditors on the corporate restructuring plan through the debt and asset disposition or management process according to the provisions of this Circular.
3. Make a decision on consent to the enterprise value and restructuring plan in accordance with the provisions of this Circular and terms and conditions of the agreement with DATC and the creditors participating in the restructuring process.
4. Inspect and supervise the implementation of the restructuring plan by the Steering Committee on Equitization/Restructuring and the restructured enterprise.
Article 11. Responsibilities of restructured enterprises
1. Take responsibility for providing complete and accurate documents and information about their business, enable DATC and creditors participating in the restructuring plan to scrutinize and evaluate the current situation of the structured enterprise before formulating the restructuring plan.
2. Cooperate with DATC and creditors in drawing up the restructuring plan for submission to the owner's representative agency or tier-1 enterprise (in case the restructured enterprise is a tier-2 enterprise) for approval according to regulations.
3. Report to the owner's representative agency or tier 1 enterprise (in case the restructured enterprise is a tier 2 enterprise) for consideration and agreement with DATC to implement the steps in the restructuring process according to the provisions of this Circular if the enterprise has not yet carried out the tasks of financial disposition and business revaluation, but has its total asset which is lower than total payable amount according to the latest audited financial statement.
4. Take charge of carrying out the restructuring plan, manage and use the proceeds from the equitization/restructuring process in accordance with the provisions of this Circular and relevant guiding documents. When any loss occurs due to violation or failure to comply with regulations, the restructured enterprise and related individuals shall be responsible for compensation and sanctions in accordance with the provisions of law.
5. Upon completion of the restructuring process, enterprises shall carry out the final settlement of payments for redundant employees, employees subject to downsizing of payroll and conversion costs, and counsel the Steering Committee on Equitization/Restructuring to request the owner's representative agency or the tier-1 enterprise (where the restructured enterprise is a tier-2 enterprise) to grant approval.
6. Structured enterprises shall carry out the rights and responsibilities towards equitized enterprises under the Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Circular No. 32/2021/TT-BTC and Circular No. 46/2021/TT-BTC.
Article 12. Responsibilities of DATC
1. Agree with the owner's representative agency or tier-1 enterprise (in case where the restructured enterprise is a tier-2 enterprise) and the restructured enterprise before deciding to purchase debt from the creditors of the restructured enterprise.
2. Carry out the financial disposition process according to the restructuring plan approved by the owner's representative agency or tier-1 enterprise (in case where the restructured enterprise is a tier-2 enterprise), the functions, responsibilities and authority of DATC, laws and regulations.
3. Cooperate with the restructured enterprise during the process of implementation of the restructuring plan.
4. Nominate the representative of the share of contributed capital from DATC to the structured enterprise according to laws and regulations.
Article 13. Responsibilities of creditors participating in the restructuring process
1. Cooperate with DATC, the owner’s representative agency or tier-1 enterprise (in case the restructured enterprise is a tier-2 enterprise) and the restructured enterprise during the period of implementation of the restructuring plan. Take actions to deal with financial issues arising at the structured enterprises according to restructuring commitments and approved restructuring plans.
2. Join the Steering Committee on Equitization/Restructuring and the Assistant Team in implementing the restructured plan (if required).
3. Nominate the representative of the share of contributed capital at restructured enterprises (if any) according to laws and regulations.
Tìm kiếm
Thông tư 05/2022/TT-BTC (Bản Word)