Nghị định 116/2015/ND-CP

DECREE

AMENDING A NUMBER OF ARTICLES OF DECREE No. 59/2011/ND-CP DATED JULY 18, 2011 BY THE GOVERNMENT ON TRANSFORMATION OF WHOLLY STATE-OWNED ENTERPRISES INTO JOINT-STOCK COMPANIES

Pursuant to the Law on Government organization dated December 25, 2001;

Pursuant to the Law on Securities dated June 29, 2006;

Pursuant to the Law on Enterprise dated November 26, 2014;

Pursuant to the Law on Management and utilization of state capital invested in the enterprise's manufacturing and business activities dated November 26, 2014;

At the request of the Minister of Finance,

The Government promulgates the Decree amending a number of articles of Decree No. 59/2011/ND-CP dated July 18, 2011 by the Government on transformation of wholly state-owned enterprises into joint-stock companies.

Article 1. Amendments to a number of articles of Decree No. 59/2011/ND-CP dated July 18, 2011 by the Government on transformation of wholly state-owned enterprises into joint-stock companies:

1. Clause 2 Article 12 is amended as follows:

“2. Agencies competent to decide on equitization plans shall select equitization advisory organizations according to law provisions. With respect to Economic corporation, State-owned general companies and a number of enterprises trade in special sectors (for example, insurance, banking, telecommunications, aviation, coal mining, petroleum extraction and mining of other precious and rare minerals), when carrying out the equitization with equitization plan within the approving competence of the Prime Minister, Ministers of Ministries, Heads of ministerial-level agencies, and governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces shall select an equitization advisory organization (on determining enterprise value or on formulating equitization plan)”.

2. Clause 1 Article 17 is amended as follows:

“1. Provisions for devaluation of goods in stock, losses from financial investments, bad receivable debts and warranties for products, goods and construction or installation works and exchange differences shall be used to offset losses according to current regulations; any remaining amounts shall be included into the value of state capital portions in equitized enterprises.

Particularly for provisions for warranties for products, goods and construction or installation works, from the time the enterprise value is determined to the time the enterprise is officially transformed into a joint-stock company (regarding signed contracts and effective warranty period), the equitized enterprise may retain an amount at the joint-stock company to carry out the warranties for products, goods and construction and installation works according to the contract. The equitized enterprise shall formulate a detailed list of products, goods and works and enclose it with the equitization document. When the warranty period for products/goods/construction and installation works expires, if the retained amount has not been used up,  then the joint-stock company shall submit the remaining amount to Enterprise Arrangement and Development Fund within 30 days from the day on which the warranty period expires.

If the equitized enterprise fails to submit the remaining amount conformably and punctually, the enterprise shall additionally bear the interest calculated at the latest prime interest rate announced by the State Bank of Vietnam on the late remitted amount for the period of late remittance and must bear the coercive measures specified in Decision No. 21/2012/QD-TTg dated May 10, 2012 by the Prime Minister  on the promulgation of Regulation on management and use of Enterprise Arrangement and Development Fund”.

3. Clause 2 Article 21 is amended as follows:

“ 2. Within 60 working days from the day on which the initial Certificate of Enterprise registration is received, the equitized enterprise shall complete the financial statement at the time of enterprise registration, have this financial statement audited, request the tax office to examine its tax settlement, conduct the settlement to determine the value of the state capital portion at the time of official transformation into a joint-stock company and identify financial problems to be further settled.”

4. Clause 3 Article 22 is amended as follows:

“3. The agency competent to decide on the equitization plan shall select a valuation advisory organization to provide advice on the enterprise valuation as follows:

a) Regarding  any valuation service procurement that does not exceed VND 3 billion, the agency competent to decide on equitization plan may choose the form of direct contracting to choose the form of valuation advice from the list announced by the Ministry of Finance; if necessary, the bidding shall be conducted according to law provisions on bidding.

b) With respect to advisory service procurements other than those specified in Point a, the agency competent to decide on the equitization plan shall decide on the organization of bidding for choosing the organization in charge of providing advice on valuation according to regulations".

5. Point d Clause 1 Article 33 is amended as follows:

“d) If the actual long-term investment capital value of an equitized enterprise in another enterprise (through revaluation or redetermination) is lower than the one written on the accounting book, then it shall be determined according to the actual value”.

6. Clause 2 Article 33 is amended as follows:

“2. The value of capital contributed by an equitized enterprise to a listed joint-stock company shall be determined on the basis of the closing price of its stocks traded on the securities market at the time closest to the time of enterprise valuation. If the stocks of the joint-stock company listed on the Upcom market without transaction for 30 days before the time of enterprise valuation, the value of contributed capital shall be determined according to regulations in Clause 5 Article 1; Points a, b and c Clause 1 Article 33 of Decree No. 59/2011/ND-CP dated July 18, 2011 by the Government. Regarding the value of capital contributed to a joint-stock company unlisted on the securities market, the enterprise equitization steering committee shall take into account the value determined by the advisory agency and request the agency competent to decide on enterprise value to make decision”.

7. Point b Clause 2 Article 36 is amended as follows:

“b) Regarding shares to be sold to strategic investors and other investors.

Particularly for large enterprises with a state capital portion of over VND 500 billion operating in specific fields or sectors (insurance, banking, post and telecommunications, aviation, coal mining, petroleum exploitation or mining of other rare and precious minerals) and parent companies of state economic groups or state-owned corporations, the percentage of shares auctioned for sale to investors shall be considered and decided by the Prime Minister or agencies authorized by the Prime Minister on a case-by-case basis.”

8. Point b Clause 3 Article 36 is annulled.

9. Point c Clause 2 Article 37 is amended as follows:

“c) The agency competent to decide on and approve the equitization plan is responsible for deciding to select the Stock Exchange or hire an intermediary financial institution to conduct an auction. With respect to Economic corporation, State-owned general companies and a number of enterprises trade in special sectors (for example, insurance, banking, telecommunications, aviation, coal mining, petroleum extraction and mining of other precious and rare minerals), when carrying out the equitization with equitization plan within the approving competence of the Prime Minister, Ministers of Ministries, Heads of ministerial-level agencies, and governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces shall select the Stock Exchange or hire an intermediary financial institution to conduct an auction.

10. Clause 8 Article 48 is added as follows:

“8. If an equitized enterprise has carried out necessary procedures according to the equitization plan approved by a competent authority but fails to carry out the IPO within 90 days from the day on which the decision on approval for equitization plan is issued, then the enterprise may sell shares to its employees and trade unions at a price equivalent to 60% of the reserve price in the equitization plan approved by a competent authority.

The difference between the selling price for employees/trade union (if any) and the share face value shall be subtracted from state capital when finalizing at the time the enterprise is officially transformed into a joint-stock company”.

Article 2. Organization of implementation

1. This Decree comes into effect from November 11, 2015.

2. Clause 2 Article 1 of Decree No. 189/2013/ND-CP dated November 20, 2013 by the Government is annulled.

Article 3. Responsibilities

1. The Minister of Finance is responsible for controlling the implementation of this Decree.

2. Ministries, Heads of ministerial-level agencies, Heads of Governmental agencies, Presidents of the People’s Committees of central-affiliated cities and provinces, Member assemblies of economic corporations, parent companies established according to the decision of the Prime Minister are responsible for implementing this Decree./.