Thông tư 115/2016/TT-BTC

CIRCULAR

AMENDING AND ADDING SOME ARTICLES OF THE CIRCULAR NO. 196/2011/TT-BTC DATED 26/12/2011 OF THE MINISTRY OF FINANCE GUIDING THE INITIAL SALE OF SHARES AND MANAGEMENT AND USE OF PROCEEDS FROM EQUITIZATION OF WHOLLY STATE-OWNED ENTERPRISES

Pursuant to the Enterprise Law No. 68/2014/QH13 dated 26/11/2014;

Pursuant to Decree No. 215/2013/ND-CP dated 23/12/2013 of the Government stipulating the functions, tasks, powers and organizational structure of the Ministry of Finance;

Pursuant to the Decree No. 59/2011/ND-CP dated 18/7/2011 of the Government on equitization of wholly state-owned enterprises;

Pursuant to the Decree No. 189/2013/ND-CP dated 20/11/2013 of the Government on amendments to the Decree No. 59/2011/ND-CP dated 18/7/2011 of the Government on equitization of wholly state-owned enterprises ;

Pursuant to the Decree No. 116/2015/ND-CP dated 11/11/2015 of the Government on amendments to the Decree No. 59/2011/ND-CP dated 18/7/2011 of the Government on equitization of wholly state-owned enterprises;

Pursuant to the Decree No. 58/2012/ND-CP dated 20/7/2012 of the Government detailing and guiding the implementation of some articles of the Securities Law and the Law on amendments to the Securities Law;

Pursuant to the Decree No. 60/2015/ND-CP dated 26/6/2015 of the Government amendments to the Decree No. 58/2012/ND-CP dated 20/7/2012 of the Government detailing and guiding the implementation of some articles of the Securities Law and the Law on amendments to the Securities Law;

Pursuant to the Decision No. 51/2014/QD-TTg dated 15/9/2014 of the Prime Minister deciding some contents on divestment, sale of shares and trading and listing registration on the securities market of state enterprises;

At the request of the Director of Agency of Corporate Finance;

The Minister of Finance issues this Circular amending and adding some articles of the Circular No. 196/2011/TT-BTC dated 26/12/2011 of the Ministry of Finance guiding the initial sale of shares and management and use of proceeds from equitization of wholly state-owned enterprises .

Article 1. Amending and adding some articles of the Circular No. 196/2011/TT-BTC dated 26/12/2011 of the Ministry of Finance guiding the initial offering of shares and management and use of proceeds from equitization of wholly state-owned enterprises follows:

1. Article 1 is amended as follows:

 “Article 1. Scope and subject of regulation

This Circular provides for the order, procedures and mode of initial offering of shares, management and use of proceeds from equitization; attaching the auction at the Stock Exchange to the registration, depository, registration of trading of paid shares sold at auction of the entities that are equitized in accord with the provisions of Article 2 of the Decree No. 59/2011/ND-CP (hereafter referred to as equitized enterprises).

2. Paragraphs 8, 9 and 10 are added to Article 2 as follows:

 “8. Share registration is the record of ownership and other rights of the holders of paid shares sold at auction.

9. Share depository means the receipt, preservation and transfer of paid shares sold at auction to the successful bidders to help them exercise their rights pertaining to the share ownership.

10. Trading registration means to put up the shares and stocks of equitized enterprises for public auction at the Stock Exchanges with the completion of payment of share purchase into the trading on the trading system for the unlisted securities (hereafter referred to as the UPCoM trading system).

3. Paragraph 7 is added to Article 7 as follows:

 “7. Registration and depository of shares sold at auction at the Vietnam Securities Depository and trading registration at Hanoi Stock Exchange.

a) General principles:

- When an equitized enterprise registers the initial offering through the Stock Exchange, it must apply for registration, depository and registration of share trading at the same time.

- The Vietnam Securities Depository and trading registration at Hanoi Stock Exchange shall grant registration, depository and trading registration of paid shares sold at auction. The number of shares sold to strategic investors and the employees of the equitized enterprise shall be registered and deposited under the guidance of the Vietnam Securities Depository and registered with the UPCoM trading system in accord with the applicable securities law.

- The Vietnam Securities Depository shall register the number of paid shares sold at auction and deposit them in the depository accounts of the investors based on the information provided by the Stock Exchange.

b) The equitized enterprise must cooperate with the Stock Exchange and the Vietnam Securities Depository in depository registration of and trading registration as follows:

- Within five (5) working days from the deadline for making payment for the shares sold at auction, the Stock Exchange where the auction is carried out shall send the Vietnam Securities Depository and Hanoi Stock Exchange the written notification of average successful bid enclosed with the list of holders of paid shares sold at auction. This list must include all information on the holders’ full names, registration numbers, addresses, depository accounts and holdings.

- Within ten (10) working days from the deadline for making payment for the shares sold at auction, the equitized enterprise must report to the State Securities Committee of Vietnam and publish information on result of offering of shares attached to the certification of the commercial bank where the escrow account of proceeds from the auction.

- Within three (3) working days from the date of receiving the report on the result of offering of shares from the equitized enterprise, the State Securities Committee of Vietnam shall send a notification to confirm the result of offering of shares to the equitized enterprise, the Hanoi Stock Exchange and the Vietnam Securities Depository.

- Within seven (07) working days from the date of receiving the notification confirming the result of auction from the State Securities Committee, the Hanoi Stock Exchange shall put the shares into trading on the UPCoM trading system. The reference price for the first trading day on the UPCoM trading system is determined based on the average successful bid.”

4. Paragraph 4 of Article 13 is amended as follows:

“4. Auction registration:

a) Where the auction of shares is done through an intermediary organization, the Equitization Steering Committee shall send the application for registration of auction of shares under the Form specified in Appendix 4 of the Circular No. 196/2011/TT-BTC and the documents pertaining to the equitization to the intermediary organization.

b) Where the auction of shares is done through the Stock Exchange, the Equitization Steering Committee shall submit the application for registration of auction of shares at the Stock Exchange and put the shares into trading on the UPCoM trading system under the Form specified in Appendix 04A attached to this Circular and the documents pertaining to the equitization to the Stock Exchange (the organization carrying out the auction) and also to the Vietnam Securities Depository and the Hanoi Stock Exchange to simultaneously carry out the registration of auction of shares, registration, depository and registration of trading of number of shares sold at auction.

c) The Equitization Steering Committee shall sign a contract or authorize the equitized enterprise to sign an auctioneering service contract with the Organization which carries out the auction of shares (hereinafter referred to as “auction organizer”).”

5. Article 15 is amended as follows:

 “Article 15. Responsibility of the auction organizer, the Vietnam Securities Depository and the Hanoi Stock Exchange

1. The auction organizer shall:

a) Request the equitized enterprise to provide all documents and information on equitization according to regulations.

b) Notify the Equitization Steering Committee and the equitized enterprise of the time and location of the auction.

c) Make public announcement at the equitized enterprise, the place of auction and on the mass media (in the 03 consecutive issues of 01 newspaper nationwide published and 01 local newspaper at the place where the enterprise’ head office is located) on the information pertaining to the offering of shares at least twenty (20) working days prior to the date of auction (Appendix 5 attached to the Circular No. 196/2011/TT-BTC).

d) Provide the investors with the information pertaining to the equitized enterprise (Appendix 2 attached to the Circular No. 196/2011/TT-BTC) equitization scheme, draft charter of the joint-stock company, application for auction participation (Appendix 6a and 6b attached to this Circular) and other prescribed information pertaining to the auction.

Where the information published is incorrect or untrue compared with the information and data provided by the Equitization Steering Committee and the equitized enterprise, the auction organizer shall pay compensation according to regulations of law.

dd) Receive the applications for participation in the auction, verifies the fulfillment of conditions for auction participation and distribute the forms of auction participation to the qualified investors.

Where the investors are not qualified for attending the auction, the auction organizer must inform disqualified investors of their disqualification and return their deposits (if paid).

e) Cooperate with the relevant organizations and individuals in making a record to confirm and announce the result of auction and collect payments for purchase of shares.

g) Keep confidential the bids offered by the investors until the official result is announced and is responsible for determining the auction result.

2. Vietnam Securities Depository shall:

Issue the codes of securities, registration, depository and clearing of trading for the number of paid shares sold at auction of the equitized enterprises that auction their shares off through the Stock Exchange. These codes shall be uniformly used upon auction, registration, depository and registration of trading.

3. Hanoi Stock Exchange shall:

Organize the trading of shares sold at auction of the equitized enterprises which have completed their payment obligations.

Article 2. Effect

1. This Circular takes effect from November 01, 2016.

2. The transitional provisions:

a) Where the Equitization Steering Committee (or the equitized enterprise under authorization) has signed an auctioneering service contract with the Stock Exchange before the effective date of this Circular, the equitized enterprise shall continue its registration of auction of shares in accord with the provisions in the Circular No. 196/2011/TT-BTC;

b) Where this Circular becomes effective but the Equitization Steering Committee (or the equitized enterprise under authorization) has not signed an auctioneering service contract with the Stock Exchange, the provisions in this Circular shall apply.

3. Any problem arising during the implementation should be promptly reported to the Ministry of Finance for study and resolution./.