Chapter III
DISPOSAL OF SHARE BLOCKS AND RECEIVABLES
Article 14. Disposition principles and authority to grant disposition decisions
1. The disposal of shares associated with receivables of debt trading companies must comply with the principles specified in Clause 1 of Article 29 of Decree No. 91/2015/ND-CP; Clause 12 of Article 1 in the Decree No. 32/2018 /ND-CP; Clause 15 of Article 2 in the Decree No. 140/2020/ND-CP and Clause 2 of Article 23 in the Decree No. 129/2020/ND-CP. Those that are not mentioned in this Circular shall be subject to the regulations applied to enterprises of which charter capital is wholly held by the state and other regulations of relevant laws.
2. At the time of formulating the plan to dispose of shares with receivables, in case the expected value is lower than the book value of the debt trading company and the provision for (both contributed capital and receivables) has been made, the decision on the plan to dispose of shares with receivables shall be made as follows:
a) If the provision already made is equal to or greater than the difference between the expected value and the book value, the Board of Members or the company's President shall decide on the plan to dispose of the block of shares and receivables;
b) If the provision already made is less than the difference between the book-value investment and the expected proceeds from disposition, the Board of Members or the company's President must advise the owner's representative agency of the causes of the difference in order for the owner's representative agency to consider any sanction against the organizations and individuals involved in the management of extra-corporate investment capital (if any) and decide on the plan for disposal of blocks of shares with receivables.
3. The entire number of shares offered for sale (all or part of the number of shares contributed in the enterprise) and associated receivables are determined as one block. Investors shall participate in purchase of the full share blocks and receivables. Joint stock companies with contributed capital and receivables of debt trading enterprises are not allowed to participate in auctions, competitive offers, or agreements on the entire share blocks and receivables of their own enterprises. Investors participating in purchase of the full share blocks and receivables are not required to make public bids.
4. Procedures for the disposal of shares associated with receivables of debt trading companies must coincide with those for the extra-corporate disposal of capital as specified in Article 29a of the Decree No. 91/2015/ND-CP; Clause 123 of Article 1 of the Decree No. 32/2018 /ND-CP; and Clause 16 of Article 2 in the Decree No. 140/2020/ND-CP.
5. The disposal of share blocks with receivables at joint-stock companies registered for trading/listing at Stock Exchanges shall be carried out in the form of public auction (block-based auction). In case where the public auction is unsuccessful, it will be conducted in the form of a competitive offering. In case where there is only one investor who is a participant who has submitted a valid application and completed all procedures to attend the competitive offering session in accordance with the regulations of the competitive offering session, the disposal of share blocks with receivables shall be carried out according to the direct agreement method.
6. For DATC, the disposal or transfer of shares with receivables must comply with the provisions of the Decree No. 129/2020/ND-CP and other documents providing instructions on implementation thereof.
Article 15. Starting prices
1. The Board of Members/the company’s President (or the General Director/Director given authority) of the debt trading company shall decide the starting price for disposal of the block of shares with receivables which is not lower than the value of the block of shares plus the value of the receivable according to the following principles:
a) The value of the block of shares used to determine the starting price of the block of shares with receivables is not lower than the value of a share multiplied (x) by the number of shares offered for sale in block and according to the principles specified at point c of clause 1 of Article 29 in the Decree No. 91/2015/ND-CP; Clause 12 of Article 1 in the Decree No. 32/2018/ND-CP; and Clause 15 of Article 2 in the Decree No. 140/2020/ND-CP.
b) The value of receivables used to determine the starting price of a block of shares with receivables must not be lower than the value redetermined during the revaluation process performed by an organization having valuation function. The valuation process shall be subject to laws on valuation and other regulatory provisions.
2. The use of the starting price for disposition of a block of shares with receivables according to the methods stated in this Circular must ensure conformance to the principle that the maximum time is not more than 06 months from the effect date of valuation certificate to the date of announcement of the winning bid for the disposal of shares with receivables (for public auction or competitive offering methods) or to the date of signing the contract for disposal of the block of shares with receivables (for the agreement method). Organizations having the function of valuation may select appropriate valuation methods according to the provisions of the law on prices and valuation to determine the starting price; take responsibility before law for the results of valuation.
Article 16. Conducting auctions
1. Debt trading enterprises shall sign contracts to hire auctioneers to organize the auction of blocks of shares with receivables.
2. In case of establishment of the Auction Council (if any), the auction organization shall issue a decision on the establishment of the Auction Council. The representative of the debt trading enterprise or an authorized person shall be appointed as the Chairman of the Auction Council.
3. Pursuant to the sample Regulation promulgated together with Appendix 2 of this Circular, the auction organization shall issue the Regulations on auctioning the whole block of shares with receivables after reaching agreement with the debt trading enterprise.
Article 17. Preparation of auction dossiers and public announcement
1. Dossier of auction for blocks of shares with receivables, including:
a) The decision of the competent authority approving the plan to dispose of the block of shares with receivables;
b) Documents proving that the debt trading enterprise is the lawful owner of the contributed capital in the joint-stock company;
c) Documents related to the debt: Debt reconciliation datasheet at the time closest to the time of information disclosure, including principal and interest debt (if any); Information on collateral for the debt (if any) and value of the collateral (e.g. book value; revaluated value) and other documents related to the debt (if necessary);
d) Valuation certificate;
dd) A disclosure statement made according to the form prescribed in Appendix II to Decree No. 140/2020/ND-CP, which adds information about the debt sold with the lot of shares, including: value of the debt (book value, re-determined value), information on debt security (if any) and value of collateral assets (book value, revalued value);
e) Regulations on auctioning of the block of shares with receivables.
2. Public disclosure:
Public disclosure of information shall be subject to the provisions of clause 3 of Article 29a in the Decree No. 91/2015/ND-CP, clause 13 of Article 1 in the Decree No. 32/2018/ND-CP and clause 16 of Article 2 in the Decree No. 140/2020/ND-CP.
Article 18. Auctioning
1. The auction is held at the headquarter of the auction organization, debt trading enterprise or other location as agreed between the debt trading enterprise and the auction organization.
2. Within the time limit specified in the Auction Regulations, bidders eligible to participate in the auction shall register for the auction and pay a deposit. The debt trading enterprise shall decide the bidder's deposit rate equal to 10% of the total value of the block of shares with receivables calculated at the starting price. In case where it is necessary to determine a higher deposit to ensure the successful implementation of the disposal plan, the debt trading enterprise shall decide on the deposit rate which is not higher than 20% of the total value of the block of shares with receivables calculated at the starting price.
After registering for the auction and completing the deposit procedure, the investor shall be provided with an auction participation slip by the auction organization to place a bid.
3. Within the time limit specified in the Auction Regulations, investors write the bid on the auction attendance slip and vote directly at the auction venue or vote by post according to the Regulations on the auction of shares. Each investor may be granted only one slip to participate in the auction and can only put in one bid for the entire block of shares with receivables.
The public auction shall be conducted only when at least 02 investors who are the participants have submitted valid dossiers and have completed all the procedures for participating in the public auction as prescribed in the Regulations on auction.
Article 19. Determination of auction results
1. The valid auction price must be the one that is not lower than the starting price as prescribed in the Auction Regulations.
2. The winning bid shall be determined to be the valid price at which the bidder has placed the highest bid.
3. In case where two or more investors put in the same highest bid which is not lower than the starting price. Within 05 working days from the date of holding the auction of shares with receivables, debt trading enterprises shall coordinate with auction organizations to conduct direct secret ballots among investors submitting these bids to determine the investor with the highest and only bid. The secret ballot price is the price not lower than the same highest bids that investors have submitted according to the bid increments specified in the Auction Regulations. The investor with the highest bid determined after voting by secret ballot becomes the winning bidder and is entitled to buy a block of shares with receivables. If investors continue to submit the same bid when holding secret ballots, a ballot will be held immediately to determine the winning bidder.
In case where the bidder submitting the highest bid equally refuses to vote by secret ballot, or the bidder who has determined the winning bid refuses to buy, the auction shall be determined to be unsuccessful in order to switch to another method of disposal according to the regulatory provisions.
Article 20. Handling of auction results
1. Immediately after the end of the auction, based on the auction results, the auction organization shall make a record of the auction results; Auction organizations, debt trading enterprises shall co-sign the record of determination of auction results. The record of determination of auction results shall be made by using the form given in Appendix III to the Decree No. 140/2020/ND-CP.
2. Within a maximum period of 05 (five) working days from the auction end date, debt trading enterprises/auction organizations shall jointly announce the auction results at the auction location, on the websites of the auction organizations, debt trading enterprises, and notify the auction winning bidders.
3. Within a maximum of 07 (seven) days from the date of announcement of the results of the auction of shares, based on the notice of auction winning, the investor shall pay the remainder of the purchase price of the shares with receivables according to the winning bid after deducting the deposit amount. Within this time limit, the debt trading enterprise shall coordinate with the auction organization to return the deposit to the investors who do not win the auction and do not violate the Auction Regulations. Investors who violate the Auction Regulations will not be refunded the deposit.
4. Transferring proceeds from selling blocks of shares with receivables and list of investors who have paid money to debt trading enterprises
a) Within 05 (five) working days from the deadline for investor's payment, the auction organization shall be responsible for transferring the proceeds from the sale of the block of shares with receivables and the list of investors who have paid to debt trading enterprises.
b) Within 10 (ten) working days from the deadline for paying investors' money, the debt trading enterprise shall send a dossier including: The competent authority's decision on approval of the plan to transfer the block of shares with receivables, the written request and the written document stating the investor wins the auction of the block of shares with the receivables (including the list of investors who have paid) to the Vietnam Securities Depository in the case of an auction of shares in a joint-stock company that has registered its shares at the Vietnam Securities Depository.
c) Within 5 days from the date of receipt of the dossier from the debt trading enterprise, the Vietnam Securities Depository shall be responsible for transferring the ownership of the capital portion transferred by the debt trading enterprise to another organization or individual according to the dossier submitted by the debt trading enterprise to the Vietnam Securities Depository.
In case where a debt trading enterprise auctions shares that have not yet been registered at the Vietnam Securities Depository, the procedure for transferring share ownership between the debt trading enterprise and the investor after the investor complete payment of share purchase shall be subject to the provisions of the Law on Enterprises, and the charter of the joint-stock company.
d) Debt trading enterprises shall be responsible for coordinating with joint-stock companies to complete the procedures for exclusive ownership of shares with receivables for investors, and publicizing information on the specific procedures and time for completing the transfer of ownership of shares with receivables to investors when the auction is held.
5. Based on the debt value and the value of the block of shares when determining the starting price as prescribed in Article 15 of this Circular, the debt trading enterprise shall decide on the allocation of proceeds from the auction of the block of shares and receivables for the block of shares and debt according to the principle that the amount allocated is not lower than the value of the block of shares and the debt when determining the starting price of the block of shares with receivables.
6. In case where the auction of shares with receivables is unsuccessful, the Members' Council or the company’s President of the debt trading enterprise shall decide to switch to competitive offering.
Article 21. Competitive or agreement-based offering
1. The implementation, determination of results, payment of proceeds from the sale of shares, preparation and sending of dossiers of transfer of share ownership and report on transfer of share blocks with receivables by competitive offering method shall be subject to the regulations as applied to the public auction method prescribed in Article 16, Article 17, Article 18, Article 19 and Article 20 of this Circular.
2. In case where the competitive offering of a block of shares with receivables is attended by only 01 (one) participating bidder, the debt trading enterprise shall sell the direct agreement to the investor who has submitted the valid application and fully comply with the procedures for participation in the competitive offering session as prescribed at a price not lower than the starting price of the competitive offering session.
3. After carrying out the methods of public auction, competitive offering and agreement, if the block of shares with receivables cannot be disposed of, the debt trading enterprise shall, based on market demands, choose the time of continuation in disposal of the block of shares with receivables according to the transactional methods and the order of implementation of the methods according to the provisions of this Circular.
Article 22. Responsibilities of debt trading enterprises
1. Take responsibility for the transfer of shares with receivables in accordance with the provisions of this Circular.
2. Prepare dossiers and disclose information on transfer of share blocks with receivables according to the provisions of Article 17 of this Circular.
3. Sign the record of determination of the results of the auction/competitive offering and announce the results of the competitive auction/offering according to the provisions of Clause 1 and 2, Article 20 and Article 21 of this Circular.
Article 23. Responsibilities of auction organizations
1. Decide on the establishment of the auction/competitive offering council (if any) and issue the Regulations on auction/competitive offering of shares with receivables.
2. Cooperate with debt trading enterprises to disclose information and report on results of auction/competitive offering of shares with receivables in accordance with this Circular.
3. Carry out the disposal of share blocks and receivables in compliance with regulations of this Circular and other relevant laws.
Article 24. Responsibilities of joint stock companies having contributed capital and receivables of debt trading companies
1. Cooperate on providing necessary information in order for debt trading enterprises to prepare auction/competitive offering dossiers for share blocks and receivables in accordance with regulations.
2. Cooperate with debt trading enterprises/auction organizations in transferring ownership of contributed capital and the right of the creditor of receivables to the bidder winning the bid for the share block and receivables.
Article 25. Responsibilities of investors
1. Investors participating in the purchase of shares shall be responsible for strictly complying with the provisions of the Regulation on transfer of shares with receivables and this Circular.
2. In case where the investor receives a transfer of shares with receivables from a public company and becomes a major shareholder, the investor shall comply with the information disclosure regime in accordance with the law on securities.
Tìm kiếm
Thông tư 05/2022/TT-BTC (Bản Word)