Công văn 2660/BTC-UBCK

Implementing the plan for re-structuring of state-owned businesses, especially state groups and corporations in 2011 – 2015 period and the Prime Minister’s Decision No. 51/2014/QD-TTg dated September 15, 2014 on capital withdrawal, sale of shares, registration of trading on securities market by state-owned enterprises, the Ministry of Finance has provided instructions on a number of matters relating to capital withdrawal through stock auction, and registration of securities trading by equitized enterprises as follows:

1. Capital withdrawal through stock auction

1.1. Regulated entities

Organizations withdrawing capital (herein 'withdrawing organizations') through stock auction as instructed herein include:

a) Ministries, ministerial-level agencies, Governmental agencies (hereinafter referred to as professional regulatory agencies), People’s Committees of central-affiliated provinces, cities (hereinafter referred to as ‘People’s committees of provinces’) that represent ownership of state capital in joint-stock companies;

b) Wholly-state owned single member limited liability companies as parent companies of economic groups; parent companies of state corporations; parent companies in parent company-subsidiary company relationship (hereinafter referred to as ‘parent companies’);

c) Wholly-state owned independent single member limited liability companies belonging to ministries and the People’s Committees of provinces (hereinafter referred to as ‘independent companies’);

d) Single member limited liability companies of which 100% of charter capital is owned by parent companies; joint-stock companies, multi-member limited liability companies contributed in capital by parent companies, independent companies;

e) Joint-stock companies, multi-member limited liability companies partially invested by the state with the ownership thereof being represented by ministries and People’s committees of provinces.

Withdrawal of state capital from financial companies, commercial banks shall be instructed by the State bank.

1.2. Applications for public disclosure of information on withdrawal of capital

1.2.1. In case where the withdrawing organization is a Ministry or the People’s Committee of a province, the application for public disclosure of information on withdrawal of capital shall include:

a) Written approval for capital withdrawal plan (capital assignment plan) by representatives of owners of state capital;

b) Plan for re-structuring of businesses prepared by ministries or provincial government, approved by the Prime Minister (if any);

c) A report on withdrawal of capital according to Form 01 enclosed herewith;

d) Publication of information on capital withdrawal to be published (herein ‘the publication of information’) according to Form 02 enclosed herewith;

e) Documents proving lawful ownership of the shares registered for sale and these shares are transferable;

f) Financial statements prepared by organizations whose shares are sold that:

- Are latest financial statements audited by independent audit organizations;

- Consist of financial statements include the balance sheet, business performance reports, cash flow statements, description of financial statements in accordance with applicable regulations on accounting and audits; and

- If the fiscal year of the organization whose shares are sold is the same as the calendar year, the application should be submitted before March 01 annually (or before the first day of the third month since the end of fiscal year if its fiscal year is different from the calendar year). The application shall include audited financial statements of the preceding year.

1.2.2. In case where a parent company or independent company withdraws capital from a joint-stock company, the application shall include following documents:

a) Written decision by Member assembly/Chairman of the company or General Director/Director on the capital withdrawal plan within authority as stipulated in the company’s charter;

b) Company’s charter;

c) Business re-structuring plan by state groups/corporations approved by competent authorities (if any);

d) Documents mentioned in Point 1.2.1 (c, d, e, f);

1.2.3. In case where a joint-stock company partially invested by a parent company, or independent company withdraws capital from another joint-stock company, the application shall include following documents:

a) Written decision by Shareholder general assembly or Board of Directors or General Director/Director on the capital withdrawal plan within authority as stipulated in the company’s charter;

b) Company’s charter;

c) Documents as mentioned  in Point 1.2.1 (c, d, e, f);

1.2.4. In case where a state-invested joint-stock company with the ownership thereof represented by a Ministry or the People’s committee of a province withdraws capital from other joint-stock companies, the application shall include following documents:

a) Written decision by Shareholder general assembly or Board of Directors or General Director/Director on the capital withdrawal plan within authority as stipulated in the company’s charter;

b) Company’s charter;

c) Documents as mentioned  in Point 1.2.1 (c, d, e, f);

1.2.5. In case where a single member limited liability company of which 100% of charter capital is owned by the parent company withdraws capital from other joint-stock companies, the application shall include:

a) Written approval by the owner or Member assembly or the company’s chairman or General Director/Director for sale of shares and the capital withdrawal plan within authority as stipulated in the company’s charter;

b) Company’s charter;

c) Documents as mentioned  in Point 1.2.1 (c, d, e, f);

1.2.6. In case where a multi-member limited liability company the ownership of which is represented by a Ministry or the People’s committee of a province, a parent company, independent company withdraws capital from joint-stock companies, the application shall include following documents:

a) Written decision by Member assembly/Chairman of the company or General Director/Director on the capital withdrawal plan within authority as stipulated in the company’s charter;

b) Company’s charter;

c) Documents as mentioned in Point 1.2.1 (c, d, e, f);

1.3. Procedures for capital withdrawal

a) Applications including documents as mentioned  in Section 1.2 of this Official Dispatch shall be delivered to State Securities Commission; and at the same time to the Stock Exchange in case the registration of auction is carried out through the Stock Exchange.

b) Within five working days since receipt of the application, State Securities Commission shall give notifications to the withdrawing organizations for amendments (if the application is found ineligible).

c) Within 20 days since receipt of adequate application, State Securities Commission shall issue written notification of such receipt.

1.4. Reporting and public disclosure of information

a) Within seven working days since State Securities Commission issues the official dispatch of the receipt of the application, the withdrawing organizations shall publish the notice of capital withdrawal on their websites or websites of stock auction organizations (if any). The publication of information shall be also published on the withdrawing organizations’ websites and stock auction organizations’ (if any).

b) The withdrawing organizations shall report withdrawal of capital to competent authorities that grant approval for re-structuring plan/owners of state capital, the Ministry of Finance (Agency of Corporate Finance) within 10 days since the date of completion of capital withdrawal.

c) Upon receipt of opinions on result of capital withdrawal from competent authorities that grant approval for re-structuring plan/owners of state capital, the withdrawing organizations shall give notice of such result to State Securities Commission.

1.5. Organizations, individuals shall register participation in stock auction in case the ordered quantity exceeds ratio of public bid as prescribed in Article 32 of the Law on Securities and Clause 11, Article 1 of the Law on Amendments to a number of articles of the Law on Securities (Percentage of ownership (after purchase of shares) from 25% of shares outstanding of public companies and over or from 25% of voting stocks and over) as follows:

- Organizations, individuals participating in stock auction shall not fulfill procedures for public bid with State Securities Commission. However, organizations and individuals that need to purchase above quantity shall make the report to auction organization board and make public disclosure of the information on the quantity of shares expected for public bidding according to Form 03 enclosed herewith;

- Organizations and individuals becoming major shareholders after purchasing stocks shall make public disclosure of information as prescribed in Article 26 of the Ministry of Finance’s Circular No. 52/2012/TT-BTC dated April 05, 2012 providing instructions on disclosure of information on securities market.

2. Registration of securities listing and trading by enterprises under equitization

2.1. Entities eligible for registration of securities listing and trading at the Stock Exchange shall be enterprises under equitization according to the Government's regulations on transforming 100%-state-owned enterprises into joint-stock companies.

Enterprises under equitization shall not have to carry out registration of trading with the Stock Exchange if they fail to meet requirements as prescribed in Point c, Clause 1, Article 25 of the Law on Securities after auction.

2.2. Registration of trading

a) Equitized enterprises including enterprises eligible for listing as prescribed in Point b, Clause 1, Article 14 of the Decision No. 51/2014/QD-TTg shall carry out registration of trading on Upcom as prescribed in Point, Clause 1 of the Decision No. 51/2014/QD-TTg

b) After making registration for trading on Upcom as prescribed in Point a, the enterprises eligible for listing shall register listing at Ho Chi Minh Stock Exchange or Hanoi Stock Exchange as prescribed in Point b, Clause 1, Article 14 of the Decision No. 51/2014/QD-TTg.

2.3. Registration for listing at Ho Chi Minh Stock Exchange

Registration for listing at Ho Chi Minh Stock Exchange shall be compliant with:

a) Regulations on security listing prescribed in the Law on Securities, Decree No. 58/2012/ND-CP regulations on securities listing at Ho Chi Minh Stock Exchange enclosed with the Decision No. 10/QD-SGDHCM dated January 13, 2014 issued by general director of Ho Chi Minh Stock Exchange;

b) Equitized enterprises should provide financial statements over a period of two years. Financial statements before the year of listing registration should be audited by an accredited independent audit organization.

2.4. Registration for listing at Hanoi Stock Exchange

Registration for listing at Ho Chi Minh Stock Exchange shall be compliant with:

a) Regulations of the Law on Securities, Decree No. 58/2012/ND-CP regulations on securities listing at Hanoi Stock Exchange enclosed with Decision No. 18/QD-SGDHN dated January 17, 2014 issued by general director of Hanoi Stock Exchange;

b) Equitized enterprises should provide financial statements over a period of one year. Financial statements before the year of listing registration should be audited by an accredited independent audit organization.

3. Responsibility of owners of state capital

Ministries, ministerial-level agencies, governmental agencies, People’s committees of central-affiliated provinces, cities; chairman of the Member assembly of state groups, corporations within authority over equitization of 100%-state-owned enterprises shall be responsible to:

3.1. Direct withdrawal of capital in accordance with law provisions and these guiding documents;

3.2. Direct representatives of capital holding in the enterprises under equitization to perform the plan for trading and listing, and closely monitor the registration for trading and listing on securities market as prescribed in Article 14 of the Prime Minister’s 51/2014/QD-TTg and the Law on Securities and Securities Market.

Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Finance for coordination./.

ANNEX 01

SPECIMEN REPORT ON CAPITAL WITHDRAWAL
(Enclosed with the Official Dispatch No. 2660/BTC-UBCK)

SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom - Happiness
---------------

REPORT ON CAPITAL WITHDRAWAL

Stocks: ... (Name of stocks)

Respectfully addressed to: State Securities Commission

A. Introduction about withdrawing organizations

1. Full name of the withdrawing organization:

2. Business name:

3. Charter capital:

4. Address of headquarter:

5. Phone number:                                                     Facsimile:

6. Account opening place:                                          Account number:

7. Legal foundations for business operation

- Certificate of Business registration No. ...., dated ....., issued by ....

- Main business activities:

- Main products/services:

(Notes: If the withdrawing organizations are professional regulatory agencies, People’s committees of provinces, filling in Points 2, 3, 6, 7 is not required).

B. Purpose of capital withdrawal

C. Stocks for auction

1. Name of stocks: ... ;

2. Type of stocks: ... ;

3. Face value of stocks: ………VND/stock;

4. Number of stocks held: ……… stocks (accounting for … % of the number of shares outstanding), of which: Number of freely transferable stocks: … stocks;

5. Number of stocks registered for sale at auction: …….… stocks;

6. Reserve price: …….VND/stock;

7. Percentage of shares registered for sale over total number of shares held: …..%

8. Auction organizers: ……….(the Stock Exchange …/securities companies/…)

9. Distribution method: …;

10. Expected selling time: …;

11. Expected time for registration of purchase of stocks: as prescribed in the Charter on Auction ...

D. Parties involved

1. Consultancies (if any): … ;

2. Auction organizers (if any): … ;

3. Audit organizations: …;

4. ....

E. Commitments of withdrawing organizations

1. We guarantee that the data in this application is adequate and true.

2. We also guarantee

- Comply strictly with legislative documents on capital withdrawal and sale of shares:

- Not to make any public disclosure of capital withdrawal before State Securities Commission issues written notification of the receipt of applications for public disclosure of capital withdrawal;

- Have liability for acts in violation of above commitments;

F. Accompanying documents

1. Decisions by the withdrawing organization on withdrawal of state capital;

2. Business re-structuring plan approved by competent authorities (if any);

3. The publication of information;

4. Documents proving legality of owners of the number of shares registered for sale and that these shares are freely transferable;

5. Financial audit reports of year …

ANNEX 02

SPECIMEN PUBLICATION OF INFORMATION
(Enclosed with the Official Dispatch No. 2660/BTC-UBCK)

PUBLICATION OF INFORMATION ON

WITHDRAWAL OF CAPITAL STOCK OF … (Name of withdrawing organization) from  JOINT-STOCK COMPANY … (name of the joint-stock company from where stock capital is withdrawn) through auction

(Under the Prime Minister’s Decision No. 51/2014/QD-TTg dated September 15, 2014 stipulating capital withdrawal, sale of shares and registration for listing and trading on securities market by state-owned enterprises)

This publication of information and supplementary documents shall be provided at: …. From: …. …….

Person in charge of publication of information (If any):

Full name: ………………................................Phone number: ………………

TABLE OF CONTENTS

CONTENT OF INFORMATION

I. PERSONS WHO TAKE MAIN RESPONSIBILITY FOR CONTENT OF INFORMATION

1. The withdrawing organization

Mr./Mrs.: ………………… Position: President of the Board of Directors or Member assembly or representative of owners or General Director/Director.

We guarantee that the information and figures in the publication of information are accurate and true.

2. Consultancies (if any): … ;

3. Guarantors (if any)

II. CONCEPTS

(Any word, word group, abbreviation represented in the publication of information which are found, incomprehensible or easy to cause misunderstanding should be fully interpreted)

III. INTRODUCTION ABOUT WITHDRAWING ORGANIZATIONS ACCORDING TO THE DECISION No. 51/2014/QD-TTg

1. Summary of establishment and development

2. Relationship with companies from where stock capital is withdrawn (if any)

3. Number of stocks held: .... … stocks (accounting for … % of the number of shares outstanding), of which:

IV. CHARACTERISTICS OF COMPANIES FROM WHERE CAPITAL IS WITHDRAWN … (Name of companies)

1. Summary of establishment and development

2. Organizational structure of companies (represented in diagrams and accompanied by explanations)

3. Reports on business and production performance for two years and the quarter closest to the present accumulated.

4. Main financial criteria

5. Profit and dividend plan in the next year

Notes Specify foundations to achieve the profit and dividend plan.

6. Information about the company’s unfinished commitments (information about convertible bonds, contract for land lease …)

7. Disputes, proceedings that have effect on price of stock capital to be withdrawn (if any).

V. CAPITAL WITHDRAWAL PLAN

1. Type of stocks: ... ;

2. Face value:

3. Total number of stocks expected to be withdrawn: ... stocks (accounting for … % of the number of shares outstanding)

4. Reserve price:

5. Price calculation method:

6. Capital withdrawal method:

7. Auction organizers:

8. Capital withdrawing time:

9. Expected time for registration of purchase of stocks: as prescribed in the Charter on Auction ...

10. Limits on percentage of ownership by foreigners (Percentage of ownership by foreigners shall be compliant with laws and international treaties)

11. Limits on assignment (if any)

12. Related types of taxes (Income tax and other taxes relating to the stocks offered for sale)

VI. PURPOSE OF CAPITAL WITHDRAWAL

VII. PARTNERS RELATED TO WITHDRAWAL

VIII. REPORTS ON INFORMATION RELATED TO COMPANIES FROM WHERE STOCK CAPITAL IS WITHDRAWN

IX. DATE, SIGNATURE, STAMP OF REPRESENTATIVES OF WITHDRAWING ORGANIZATIONS, CONSULTANCIES, GUARANTORS (IF ANY)

ANNEX 03

NOTICE OF REGISTRATION FOR PURCHASE OF SHARES IN LARGE QUANTITY THROUGH AUCTION
(Enclosed with the Official Dispatch No. 2660/BTC-UBCK)

NOTICE OF REGISTRATION FOR PURCHASE OF SHARES IN LARGE QUANTITY

Respectfully addressed to: Auction organization board of Joint-Stock Company ...

I. Development and characteristics of organizations/individuals registering the purchase

A. Organizations

1. Name, address, phone number, facsimile, websites, charter capital, number of outstanding shares:

2. Summary of business activities, performance, vision, development plans:

3. Financial situations: (Total capital sources for business, structure of capital sources, income statement and financial criteria)

B. Individuals

1. Full name: …

2. Date of birth: …

3. ID number: …………. Issued …, dated …

4. Address: …

5. Phone number:

II. Name of company that offers stocks for sale

III. Relationship between organizations/individuals and companies offering stocks for sale

IV. Quantity, percentage of stocks currently held by organizations/individuals and persons related thereto registering purchase from companies that offer stocks for sale

1. Quantity, percentage of stocks currently held by organizations/individuals registering purchase from companies that offers stocks for sale: …

2. Quantity, percentage of stocks currently held by persons related to organizations/individuals registering purchase from companies that offer stocks for sale: …

V. Quantity, percentage of stocks expected to be purchased by organizations/individuals and persons related to organizations/individuals

1. Quantity, percentage of stocks expected to be purchased by organizations/individuals: …

2. Quantity, percentage of stocks expected to be purchased by persons related to organizations/individuals: …

VI. Quantity, percentage of stocks expected to be held after purchase by organizations/individuals and persons related to organizations/individuals

1. Quantity, percentage of stocks expected to be held after purchase by organizations/individuals: …

2. Quantity, percentage of stocks expected to be held after purchase by persons related to organizations/individuals: …

VII. Capital for implementation

VIII. Purposes of purchase of shares and plan for business performance after purchase of shares