Thông tư 34/2019/TT-BTC sửa đổi Thông tư 40/2018/TT-BTC hướng dẫn bán cổ phần lần đầu và quản lý, sử dụng tiền thu từ cổ phần hóa của doanh nghiệp nhà nước và công ty trách nhiệm hữu hạn một thành viên do doanh nghiệp nhà nước đầu tư 100% vốn điều lệ thực hiện chuyển đổi thành công ty cổ phần do Bộ trưởng Bộ Tài chính ban hành

CIRCULAR

AMENDMENTS TO THE CIRCULAR NO. 40/2018/TT-BTC DATED MAY 04, 2018 OF THE MINISTRY OF FINANCE PROVIDING GUIDELINES FOR INITIAL OFFERING OF SHARES AND MANAGEMENT AND USE OF PROCEEDS FROM EQUITIZATION OF STATE-OWNED ENTERPRISES AND SINGLE-MEMBER LIMITED LIABILITY COMPANIES WHOLLY OWNED BY STATE-OWNED ENTERPRISES

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

Pursuant to the Law on management and use of state capital invested in manufacturing and business operations of enterprises dated November 26, 2014;

Pursuant to the Government’s Decree No.126/2017/ND-CP dated November 16, 2017 on equitization of state-owned enterprises and single-member limited liability companies wholly owned by state-owned enterprises;

Pursuant to the Government’s Decree No. 58/2012/ND-CP dated July 20, 2012 elaborating and guiding the implementation of the Law on securities and the Law on amendments to the Law on securities;

Pursuant to the Government’s Decree No. 60/2015/ND-CP dated June 26, 2015 on amendments to the Government’s Decree No. 58/2012/ND-CP dated July 20, 2012 elaborating and guiding the implementation of the Law on securities and the Law on amendments to the Law on securities;

Pursuant to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017 defining functions, tasks, powers and organizational structure of the Ministry of Finance;

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

The Minister of Finance promulgates a Circular on amendments to the Circular No. 40/2018/TT-BTC dated May 04, 2018 of the Ministry of Finance providing guidelines for initial offering of shares and management and use of proceeds from equitization of state-owned enterprises and single-member limited liability companies wholly owned by state-owned enterprises (hereinafter referred to as “Circular No. 40/2018/TT-BTC”).

Article 1. Amendments to the Circular No. 40/2018/TT-BTC

1. Article 9a is added as follows:

“Article 9a. Rules for adjusting charter capital structure

1. With regarding to equitized state-owned enterprises:

If a state-owned enterprise is equitized by means of sale of a partial or entire state capital associated with issuance of additional stocks, adjustments to the charter capital structure are made as follows:

a) The number of sold shares that are additionally issued according to the equitization plan approved by the owner's representative agency shall be determined. In case the number of shares sold in the forms specified in this Circular (including shares issued to strategic investors) is greater than the number of shares additionally issued according to the plan for offering of shares, such positive difference is considered as shares from the sale of state capital.

b) The number of shares offered to the entities specified in Point a and Point c Clause 1 Article 42 of the Decree No. 126/2017/ND-CP shall be considered as shares from sale of state capital.

2. With regarding to equitized enterprises that are enterprises wholly owned by state-owned enterprises

Adjustments to the charter capital structure in case an enterprise that is wholly owned by a state-owned enterprise is equitized by means of sale of a partial or entire state capital associated with issuance of additional stocks shall be made in accordance with Clause 1 of this Article”.

2. The following Clause 3 is added to Article 16:

“3. The owner’s representative agency shall, after 30 days as of July 29, 2019, make decision on approval for statement of the Enterprise Arrangement and Development Fund as at December 31, 2017 in accordance with regulations herein. Within the maximum period of 05 business days from the issuance date of such decision by the owner's representative agency, the parent company shall transfer the increased amount compared to the amount payable as determined in Point 2 Article 15 of this Circular (if any) to the Enterprise Arrangement and Development Fund. After the said time limit, the parent company shall pay interests on late payment according to regulations on management and use of the Enterprise Arrangement and Development Fund.

If the amount payable to the Enterprise Arrangement and Development Fund according to the calculation by the owner's representative agency is smaller than that determined and paid by the enterprise according to Point 2 Article 15 of this Circular, the enterprise shall request the Ministry of Finance in writing to refund overpaid amount. Based on the enterprise’s request and relevant documents as provided for in the regulations on management and use of the Enterprise Arrangement and Development Fund, the Ministry of Finance shall decide to use money of the Enterprise Arrangement and Development Fund to refund the overpaid amount to the enterprise within 10 business days.

3. Article 20a is added as follows:

“Article 20a. Responsibility of Boards of Members and Presidents of state-owned enterprises

1. Consider giving approval for equitization plans of rank-II enterprises for offering shares, and managing and using proceeds from the equitization in accordance with this Circular, except the entities specified in Point b Clause 1 Article 45 of the Decree No. 126/2017/ND-CP.

2. Inspect equitization steering committees and equitized rank-II enterprises in the course of offering shares according to the approved plan, and managing and using proceeds from the equitization in accordance with this Circular, except the entities specified in Point b Clause 1 Article 45 of the Decree No. 126/2017/ND-CP.

3. Direct and expedite equitized rank-II enterprises to transfer proceeds from the equitization to the Enterprise Arrangement and Development Fund in accordance with this Circular, except the entities specified in Point b Clause 1 Article 45 of the Decree No. 126/2017/ND-CP.

4. Make decisions on approval for statements of equitization expenses, funding for support for employees facing redundancy and proceeds from equitization of rank-II enterprises, except the entities specified in Point b Clause 1 Article 45 of the Decree No. 126/2017/ND-CP, and send them to the Ministry of Finance (via the Corporate Finance Department).

5. Expedite equitized rank-II enterprises to transfer unused provisions for warranty of products, goods and constructions according to Clause 6 Article 18 of this Circular, except the entities specified in Point b Clause 1 Article 45 of the Decree No. 126/2017/ND-CP.”

Article 2. Effect

1. This Circular comes into force from July 29, 2019.

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

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