Circular 05/2022/TT-BTC restructuring of enterprises ineligible for equitization

CIRCULAR

Guiding the restructuring of enterprises ineligible for equitization and transfer of share lots with receivable debts for enterprises with 100% state-owned charter capital with the function of debt purchase, sale and settlement

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Pursuant to the Law No. 59/2020/QH14 on Enterprises dated June 17, 2020;

Pursuant to the Law No. 69/2014/QH13 on Management and Use of State Capital Invested in Production and Business at Enterprises dated November 26, 2014;

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

Pursuant to the Decree No. 91/2015/ND-CP dated October 13, 2015 of the Government on investment of state capital in enterprises and management and use of capital and assets at enterprises;

Pursuant to the Decree No. 32/2018/ND-CP dated March 8, 2018 of the Government on amending and supplementing a number of articles of the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015 on investment of state capital in enterprises and management and use of capital and assets at enterprises;

Pursuant to the Decree No. 126/2017/ND-CP dated November 16, 2017 of the Government on transformation of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital into joint-stock companies;

Pursuant to the Decree No. 140/2020/ND-CP dated November 30, 2020 of the Government on amending and supplementing a number of articles of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017 on transformation of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital into joint-stock companies; the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015 on investment of state capital in enterprises and management and use of capital and assets at enterprises; and the Government’s Decree No. 32/2018/ND-CP dated March 8, 2018 on amending and supplementing a number of articles of Decree No. 91/2015/ND-CP;

Pursuant to the Decree No. 129/2020/ND-CP dated October 27, 2020 of the Government defining functions, tasks and operating mechanism of the Vietnam Debt and Asset Trading Corporation;

At the proposal of the Director of Corporate Finance Department;

The Minister of Finance promulgates the Circular guiding the restructuring of enterprises ineligible for equitization and transfer of share lots with receivable debts for enterprises with 100% state-owned charter capital with the function of debt purchase, sale and settlement.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides the following contents:

1. Restructuring of enterprises ineligible for equitization as specified in Clause 2 Article 4 of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017 on transformation of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital into joint-stock companies (hereinafter referred to as Decree No. 126/2017/ND-CP), at Point b Clause 2 Article 1 of the Government’s Decree No. 140/2020/ND-CP dated November 30, 2020 on amending and supplementing a number of articles of the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017 on transformation of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital into joint-stock companies; the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015 on investment of state capital in enterprises and management and use of capital and assets at enterprises; and the Government’s Decree No. 32/2018/ND-CP dated March 8, 2018 on amending and supplementing a number of articles of Decree No. 91/2015/ND-CP (hereinafter referred to as Decree No. 140/2020/ND-CP) via debt settlement for transformation into joint-stock companies.

2. Transfer of share lots with receivable debts for enterprises with 100% state-owned charter capital with the function of debt purchase, sale and settlement as defined in Clause 2 Article 29a of the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015 on investment of state capital in enterprises and management and use of capital and assets at enterprises (hereinafter referred to as Decree No. 91/2015/ND-CP), Clause 13 Article 1 of the Government’s Decree No. 32/2018/ND-CP dated March 8, 2018 on amending and supplementing a number of articles of the Government’s Decree No. 91/2015/ND-CP dated October 13, 2015 on investment of state capital in enterprises and management and use of capital and assets at enterprises (hereinafter referred to as Decree No. 32/2018/ND-CP), Clause 16 Article 2 of the Decree No. 140/2020/ND-CP and Clause 2 Article 23 of the Government’s Decree No. 129/2020/ND-CP dated October 27, 2020 defining functions, tasks and operating mechanism of the Vietnam Debt and Asset Trading Corporation (hereinafter referred to as Decree No. 129/2020/ND-CP).

Article 2. Subjects of application

1. Enterprises with 100% state-owned charter capital with the function of debt purchase, sale and settlement (hereinafter referred to as debt purchase and sale enterprises).

2. Enterprises of which the actual value, after their financial matters are settled and they are reevaluated in accordance with the Decree No. 126/2017/ND-CP and Decree No. 140/2020/ND-CP, is lower than their liabilities (hereinafter referred to as restructuring enterprises).

3. Ministries, ministerial-level agencies, government-attached agencies, the Commission for the Management of State Capital at Enterprises; People's Committees of provinces and centrally-run cities that are assigned by the Government to exercise the rights and discharge the responsibilities of the representative of state ownership over enterprises established under its decision or to manage and exercise the rights and discharge the responsibilities over the state capital amount invested joint-stock companies or limited liability companies with two or more members (hereinafter referred to as owner-representing agencies).

4. Creditors participating in the restructuring.

5. Joint-stock companies having contributed capital and receivable debts of debt purchase and sale enterprises.

6. Auction organizations.

7. Investors purchasing share lots with receivable debts.

8. Other organizations and individuals related to the transfer of share lots with receivable debts.

Article 3. Interpretation of terms

1. “Restructuring plan” means a plan for transformation of an enterprise specified in Clause 2 Article 2 of this Decree into a joint-stock company, including a plan for settlement of financial matters via debt purchase and sale activities.

2. “Cost of debt purchase” is expenses for debt purchase, including the purchase price of the debt plus (+) expenses related to the purchase of the debt.

3. “Debt repayment obligation reduction” means the measure of writing off part of the debt repayment liability of a debtor as prescribed by law regulations.

4. “Creditors” include credit institutions, economic organizations, individuals and other subjects of civil transactions that have the right to claim debts.

5. “Creditor participating in the restructuring” means a creditor of the restructuring enterprise that participates in its restructuring process for transportation into a joint-stock company.

6. “Organizations with the valuation function” mean enterprises that are established and operating in Vietnam in accordance with law regulations and are granted a certificate of eligibility for provision of valuation services under law regulations on prices and valuation.

7. “Transfer of share lots with receivable debts” means the concurrent transfer of share lots and receivable debts of debt purchase and sale enterprises at other enterprises by the capital transfer methods as specified in the Law No. 69/2014/QH13 on Management and Use of State Capital Invested in Production and Business at Enterprises dated November 26, 2014 (hereinafter referred to as Law No. 69/2014/QH13).

8. “Auction organizations” include stock exchanges, securities companies, property auction service centers and property auction enterprises as specified in law regulations on property auction.

9. “Unsuccessful auction/competitive offering” include the following cases:

a) No one or only one investor registers for participation in the auction/competitive offering though the time limit for registration for participation in auction/competitive offering has expired;

b) After the payment of deposit, no one submits a slip of participation in auction/competitive offering though the time limit for submitting has expired;

c) No one offers bids in the auction/competitive offering or the offered highest bid is still lower than the reserve price;

d) All investors offering the same highest bid refuse to purchase or refuse to cast secret ballots;

dd) The winning bidder refuses to purchase;

e) All investors violate the Regulation on auction/competitive offering.

Chapter II

RESTRUCTURING OF ENTERPRISES

Article 4. Principles of enterprise restructuring

1. A restructuring plan shall be conducted by the consensus among the owner-representing agency of the restructuring enterprise and the Vietnam Debt and Asset Trading Corporation and/or creditors participating in the restructuring (an agreement minutes of the parties is required).  The Vietnam Debt and Asset Trading Corporation may proactively negotiate with creditors on the debt purchase and propose plans to restructure the enterprise in accordance with law regulations.

2. The Vietnam Debt and Asset Trading Corporation shall decide to buy the debt after reaching agreement with the owner-representing agency and having results of negotiation on debt purchase with the restructuring enterprise’s creditors. The debt purchase and sale plan for enterprise restructuring must be feasible, ensure the effectiveness of capital recovery and the difference between the cost of debt purchase and the book value of the debt enough for the settlement of financial matters and successful transformation of the enterprise into a joint stock company as prescribed.

3. In case such debt purchase and sale plan for enterprise restructuring is infeasible and ineffective, the enterprise equitization/restructuring steering committee shall consider and decide other methods of transformation prescribed by law regulations.

4. In addition to the contents specified in this Circular, restructuring enterprises, the Vietnam Debt and Asset Trading Corporation and relevant agencies shall comply with Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Decree No. 129/2020/ND-CP and their amending and supplementing documents (if any).

Article 5. Process of enterprise restructuring

Process of enterprises restructuring for the transformation into joint-stock companies shall be detailed in Appendix 1 to this Circular, including the main steps as follows:

1. Building of a restructuring plan

a) Perform the plan for transformation of the enterprise into a joint-stock company:

- Establish an enterprise equitization/restructuring steering committee and an assistant team.

- Prepare files and documents.

- Approve equitization cost estimates, decide the selection of equitization consultancy.

- Organize inventory and settlement of financial matters and valuation of the enterprise in accordance with Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, the Ministry of Finance’s guiding Circular and amending and supplementing documents (if any).

- Decide on and announcing the enterprise’s value.

- Decide to require the Vietnam Debt and Asset Trading Corporation and other creditors to participate in the restructuring process.

b) Complete the restructuring plan and submit it to the owner-representing agency for approval.

2. Organization of implementation of the restructuring plan.

3. Completion of transformation of the enterprise into a joint-stock company.

a) Hold the first general meeting of shareholders and make enterprise registration;

b) Organize the finalization and handover between the restructuring enterprise and the joint-stock company.

Article 6. Settlement of financial matters of restructuring enterprises

1. Settlement of financial matters upon valuation of a enterprise

The restructuring enterprise shall carry out the settlement of financial matters upon valuation of the enterprise in accordance with the Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP and the Ministry of Finance’s Circular No. 46/2021/TT-BTC dated June 23, 2021 guiding a number of contents related to settlement of financial matters and valuation of enterprises upon transformation of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital into joint-stock companies (hereinafter referred to as Circular No. 46/2021/TT-BTC) and amending and supplementing documents (if any).

2. Settlement of financial matters under restructuring plan

a) Principles of settlement of financial matters:

- The settlement of financial matters of a restructuring enterprise must be based on the restructuring plan approved by the owner-representing agency. The debt repayment obligation reduction must be attached to the Vietnam Debt and Asset Trading Corporation’s conversion from debts and assets into contributed capital at the enterprise and does not change the responsibility of organizations or individuals causing previous financial losses.

- Ensure the publicity, transparency and observance of law regulations. In cases relevant organizations and individuals, during the settlement of financial matters, fail to comply with the regimes as specified, causing capital and property losses, such organizations and individuals shall be responsible for compensation and be handled in accordance with law regulations.

b) Contents of settlement of financial matters:

- At the time of enterprise valuation, based on the restructuring plan approved by the owner-representing agency:

+ The Vietnam Debt and Asset Trading Corporation shall consider and decide a debt repayment obligation reduction equaling a negative amount of equity under the owner-representing agency’s decision on valuation of enterprise minus the debt repayment obligation reduction of creditors (if any) in maximum and not exceeding the difference between the book value of the purchased debt and the cost of debt purchase until the time of deciding debt repayment obligation reduction;

+ Other creditors shall decide the debt repayment obligation reduction for restructuring enterprises according to the parties’ agreement.

- From the time of enterprise valuation to the time of official transformation into a joint stock company, the restructured enterprise shall continue to settle financial matters in accordance with regulations. In which:

+ Profits shall be distributed according to regulations in accordance with current regulations for enterprises with 100% state-owned charter capital.

+ Enterprises shall fulfill obligations to the state budget in accordance with current regulations (if any).

+ If the loss arises, the owner-representing agency shall direct the restructuring enterprise to identify the causes and responsibilities of concerned collectives and individuals for making remedial measures and compensation in accordance with regulations, the remaining loss shall be considered by the Vietnam Debt and Asset Trading Corporation and creditors participating in the restructuring to reduce part of debt repayment obligation in case of source of difference between the cost of debt purchase and the book value of the debt.

Article 7. Conversion from debts into contributed capital and initial offering of shares

1. The Vietnam Debt and Asset Trading Corporation and creditors participating in the restructuring of an enterprise may convert the debts into contributed shares under the agreement and such conversion must be approved by the owner-representing agency in the restructuring plan.

2. The restructuring enterprise shall comply with the order, procedures, methods of initial offering of shares and selling price of shares as specified in the Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP and the Ministry of Finance’s Circular No. 32/2021/TT-BTC dated May 17, 2021 on guiding the initial offering of shares, management and use of the proceeds from the equitization of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital transformed into joint-stock companies (hereinafter referred to as Circular No. 32/2021/TT-BTC) and amending and supplementing documents (if any). The owner-representing agency shall decide the selling price of shares applicable to employees working in the restructuring enterprise but must ensure that such price is not lower than 60% of the par value of shares in accordance with Clause 3 Article 42 of Decree No. 126/2017/ND-CP.

Article 8. Handling of quantities of unsold shares

A restructuring enterprise shall be responsible for handling of quantities of unsold shares in accordance with Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP and Circular No. 32/2021/TT-BTC. In which:

1. In case of failure to sell all shares to investors by agreement method after an unsuccessful public auction or failure to sell all offered shares of the public auction session in accordance with Clauses 3 and 4  Article 8 of the Circular No. 32/2021/TT-BTC, the enterprise equitization/restructuring steering committee shall consider and decide to offer the shares to the Vietnam Debt and Asset Trading Corporation and creditors according to the principle of agreement, ensuring that the selling price of shares is not lower than par value.

2. If the Vietnam Debt and Asset Trading Corporation and creditors still fail to purchase all the offered shares specified in Clause 1 of this Article, the enterprise equitization/restructuring steering committee shall report on it to the owner-representing agency for readjusting the charter capital, the charter capital structure to transform the restructuring enterprise into a joint-stock company before the holding of the first general meeting of shareholders.

Article 9. Responsibilities of the enterprise equitization/restructuring steering committee

The enterprise equitization/restructuring steering committee shall exercise the rights and perform the responsibilities specified in Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Circular No. 32/2021/TT-BTC and Circular No. 46/2021/TT-BTC, in which:

1. Assist owner-representing agencies or enterprises with 100% state-owned charter capital (hereinafter referred to as level-I enterprises) for cases in which the restructuring enterprises are those with 100% charter capital owned by a level-I enterprise (hereinafter referred to as level-II enterprises) to direct and organize the implementation of transformation of restructuring enterprises into joint-stock companies.

2. Review and submit the restructuring plans to the owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) for approval in accordance with this Circular.

3. Report to the owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) for the approval of transformation expenses, expenses for laid-off employees, payroll streamlining and the proceeds from the equitization/structuring.

4. Inspect and supervise the implementation of the restructuring plan in accordance with this Circular and relevant guiding documents.

Article 10. Responsibilities of owner-representing agencies or level-I enterprises

The owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) shall exercise the rights and perform the responsibilities specified in Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Circular No. 32/2021/TT-BTC and Circular No. 46/2021/TT-BTC, in which:

1. Direct the restructuring enterprises to coordinate with the Vietnam Debt and Asset Trading Corporation and their

creditors in order to conduct surveys and assessment of the current situation of the enterprises before participation in the restructuring.

2. Reach an agreement with the Vietnam Debt and Asset Trading Corporation and their creditors on a plan to restructure the enterprises through debt settlement in accordance with this Circular.

3. Decide to approve the enterprises’ value and restructuring plan in accordance with this Circular and the contents agreed with the Vietnam Debt and Asset Trading Corporation and their creditors participating in the restructuring.

4. Inspect and supervise the enterprise equitization/restructuring steering committee and the restructuring enterprises in the implementation of the restructuring plan.

Article 11. Responsibilities of restructuring enterprises

1. Provide complete and accurate documents and information about the enterprises, creating favorable conditions for the Vietnam Debt and Asset Trading Corporation and

creditors participating in the restructuring plan to research and evaluate the current situation of the enterprises before formulating a restructuring plan.

2. Coordinate with the Vietnam Debt and Asset Trading Corporation and creditors to build a restructuring plan, submit it to the owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) for approval in accordance with regulations.

3. Report to the owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) to consider and reach an agreement with the Vietnam Debt and Asset Trading Corporation to implement
steps of the restructuring process as prescribed in this Circular in cases the enterprises have not yet performed the settlement of financial matters and re-determination of the enterprise value but according to the most recent audited financial statements, the total assets are lower than liabilities.

4. Organize the implementation of the restructuring plan, management and use of proceeds from equitization/restructuring in accordance with this Circular and relevant guiding documents. In case any loss occurs due to violation or failure to comply with regulations, the restructuring enterprise and relevant individuals shall be responsible for paying compensation and shall be handled in accordance with law regulations.

5. At the end of the restructuring process, the enterprises must finalize funding for support of laid-off employees, payroll streamlining and transformation expenses, and report on it to the enterprise equitization/restructuring steering committee for submitting to the owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) for approval.

6. The restructuring enterprise shall exercise the rights and perform the responsibilities for equitized enterprises specified in Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Circular No. 32/2021/TT-BTC and Circular No. 46/2021/TT-BTC.

Article 12. Responsibilities the Vietnam Debt and Asset Trading Corporation

1. Reach an agreement with the owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) and restructuring enterprises before deciding to purchase debts from creditors of the restructuring enterprises.

2. Carry out the settlement of financial matters according to the restructuring plans approved by the owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises), ensuring the compliance with the functions, tasks and competence of the Vietnam Debt and Asset Trading Corporation and law regulations.

3. Coordinate with restructuring enterprises in the process of organizing and implementing the restructuring plans.

4. Assign representatives of the contributed capital amount of the Vietnam Debt and Asset Trading Corporation at restructuring enterprises in accordance with regulations.

Article 13. Responsibilities of creditors participating in the restructuring

1. Coordinate with the Vietnam Debt and Asset Trading Corporation, owner-representing agencies or level-I enterprises (in cases restructuring enterprises are level-II enterprises) and restructuring enterprises in the course of implementation of restructuring plans. Carry out the settlement of financial matters of restructuring enterprises according to their commitments and the approved restructuring plans.

2. Participate in the enterprise equitization/restructuring steering committee and its assistant team (if necessary).

3. Assign representatives of their contributed capital amount at restructuring enterprises (if any) in accordance with law regulations.

Chapter III

TRANSFER OF SHARE LOTS WITH RECEIVABLE DEBTS

Article 14. Principles of implementation and competence to decide on the transfer

1. The transfer of share lots with receivable debts of a debt purchase and sale enterprise shall comply with the principles specified in Clause 1 Article 29 of Decree No. 91/2015/ND-CP, Clause 12 Article 1 of Decree No. 32/2018/ND-CP, Clause 15 Article 2 of Decree No. 140/2020/ND-CP and Clause 2 Article 23 of Decree No. 129/2020/ND-CP.  The contents not defined in this Circular shall comply with regulations applicable to enterprises with 100% state-owned charter capital and other relevant law regulations.

2. At the time of formulating the plan for transfer of share lot with receivable debts, if the expected transfer value is still lower than the value recorded in the accounting books of the debt purchase and sale enterprise and the enterprise has deducted the provisions (for both contributed capital and receivable debts), the decision on plan for transfer of share lot with receivable debts shall comply with the following provisions:

a) If the deducted provision is equal or larger than the difference between the value expected to be recovered and the value recorded in the accounting books, the Members’ Council or the company president shall decide the plan for transfer of share lot with receivable debts;

b) If the deducted provision is smaller than the difference between the value of investment recorded in the accounting books and the expected transfer value, the Members’ Council or the company president must report on the cause of the difference to the owner-representing agency in order that the owner-representing agency considers and handles organizations and individuals involved in the management of outside-invested capital (if any) and decides on the plan for transfer of share lot with receivable debts.

3. The whole number of offered shares (whole or part of the number of shares contributed in the enterprise) with receivable debts shall be determined as one lot. Investors must purchase the whole lot of shares with receivable debts. Joint-stock company having contributed capital and receivable debts of the debt purchase and sale enterprise must not participate in the auction, competitive offering, or reach an agreement about its whole lot of shares with receivable debts. Investors purchasing the whole lot of shares with receivable debts must not perform the procedures for public bid.

4. The order of transfer of share lot with receivable debts of the debt purchase and sale enterprise shall comply with the order of transfer of outside-invested capital specified in Article 29a of Decree No. 91/2015/ND-CP, Clause 13 Article 1 of Decree No. 32/2018/ND-CP and Clause 16 Article 2 of Decree No. 140/2020/ND-CP.

5. The transfer of share lots with receivable debts in joint-stock companies that have registered its listing/trading in stock exchange shall be carried out in the form of public auction (lot-type auction). In case the public auction is not successful, the transfer shall be conducted in the form of competitive offering. In case only one investor being subject of participation has submitted a valid dossier and fully carried out the procedures to attend the competitive offering session as specified in the regulation on competitive offering sessions, the transfer of share lots with receivable debts shall be conducted in the form of direct agreement.

6. For the Vietnam Debt and Asset Trading Corporation, the transfer of share lots with receivable debts shall comply with the Decree No. 129/2020/ND-CP and guiding documents.

Article 15. Reserve price

1. The Members’ Council/company president (or the General Director/Director as decentralized) of a debt purchase and sale enterprise shall decide the reserve price for transfer of share lot with receivable debts but must ensure that such reserve price is not less than the value of the lot of shares plus the value of the receivable debts according to the following principles:

a) The value of the lot of shares used to determine the reserve price of the share lot with receivable debts must not be less than the value of a share multiplied (x) by the number of shares offered in lots and according to the principles specified at Point c Clause 1 Article 29 of Decree No. 91/2015/ND-CP, Clause 12 Article 1 of Decree No. 32/2018/ND-CP and Clause 15 Article 2 of Decree No. 140/2020/ND-CP.

b) The value of the receivable debts used to determine the reserve price of the share lot with receivable debts must not be less than the value re-determined by an organization with the valuation function. The price determination shall comply with the law regulations on valuation and relevant law regulations.

2. The use of a single reserve price to transfer a lot of shares with receivable debts according to the forms specified in this Circular must ensure the principle that such reserve price is existing not later than 06 months from the effective date of the valuation brief report until the date of declaration of the winning bid for transfer of share lot with receivable debts (for the forms of public auction, competitive offering) or until the signing date of contract on transfer of share lot with receivable debts (in the form of agreement). The organization with the valuation function may select appropriate valuation methods in accordance with law regulations on prices and valuation to determine the reserve price; and shall hold responsibility before law for the results of valuation.

Article 16. Auction organizations

1. A debt purchase and sale enterprise shall sign a contract to hire an auction organization to organize the auction of lots of shares with receivable debts.

2. In case of establishment of an auction council (if any), the auction organization shall issue a decision on the establishment of the auction council. The chairperson of the auction council shall be the representative of the debt purchase and sale enterprise or an authorized person.

3. Based on the Model Regulation promulgated together with Appendix 2 of this Circular, the auction organization shall issue the Regulation on auctioning the whole lot of shares with receivable debts after reaching an agreement with the debt purchase and sale enterprise.

Article 17. Formulation of auction dossiers and information disclosure

1. A dossier for auctioning a lot of shares with receivable debts includes:

a) A competent agency’s decision on approval of plan for transfer of share lots with receivable debts;

b) Documents proving that the debt purchase and sale enterprise is the lawful owner of the contributed capital in the joint-stock company;

c) Documents related to the debt: written records of comparison of liabilities 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 (book value; redetermined value) and other documents related to the debt (if necessary);

d) Valuation brief report;

dd) A statement of information disclosure made according to the form specified in Appendix II to Decree No. 140/2020/ND-CP, with additional information about the debt sold with the lot of shares, including:  value of the debt (book value, redetermined value), information on collateral for debt (if any) and value of the collateral (book value, redetermined value);

e) Regulation on auction of share lots with receivable debts.

2. Information disclosure:

The disclosure of information shall comply with Clause 3 Article 29a of Decree No. 91/2015/ND-CP, Clause 13 Article 1 of Decree No. 32/2018/ND-CP and Clause 16 Article 2 of Decree No. 140/2020/ND-CP.

Article 18. Auction

1. An auction session shall be organized at the head office of the auction organization, debt purchase and sale enterprise or another location as agreed upon between the debt purchase and sale enterprise and the auction organization.

2. Within the time limit specified in the Regulation on Auction, investors eligible to participate in the auction shall register for the auction and pay a deposit. The debt purchase and sale enterprise shall decide the investors’ deposit rate that is equal to 10% of the total value of the lot of shares with receivable debts calculated at the reserve price. In case it is necessary to determine a higher deposit rate to ensure successful transfer plan, the debt purchase and sale enterprise shall decide the deposit rate, but ensure that it is not higher than 20% of the total value of the lot of shares with receivable debts calculated at the reserve price.

After registering for the auction and completing the deposit procedure, the investors shall be provided with an auction participation slip by the auction organization to write the bid (auction price).

3. Within the time limit specified in the Regulation on Auction, investors shall write the bid (auction price) in the auction participation slip and cast it directly at the auction venue or by post in accordance with the Regulation on auction of shares. Each investor is only granted an auction participation slip and can only bid one price for the whole lot of shares with receivable debts.

The public auction shall be only conducted when at least 02 investors being subject of participation have submitted valid dossiers and fully carried out the procedures to attend the public auction session as prescribed in the Regulation on Auction.

Article 19. Determination of auction results

1. Valid auction price means a price not lower than the reserve price prescribed in the Regulation on Auction.

2. The winning bid shall be determined as the highest valid bid.

3. In case two or more investors set the equal highest price and not lower than the reserve price, within 05 working days from the date the auction session of the lot of shares with receivable debts is held, the debt purchase and sale enterprise shall coordinate with the auction organization in implementing a directly and secretly ballot among investors who pay this price to determine which investor has the highest and only bid.  The secret ballot price is the price that is not lower than the auction price that investors have equally paid according to the bid increment specified in the Regulation on Auction. The investor with the highest bid when voting by

secret ballot shall be the winning investor and will be allowed to buy the entire lot of shares with receivable debts. In case the investors continue to pay the same price when holding secret ballot, a draw shall be organized immediately to determine the winning investor.

If the investors paying the equal highest price all refuse to take part on the secret ballot, or the winning investor has been determined but such investor refuses to buy, to determine that the auction is unsuccessful in order to switch to another transfer method in accordance with regulations.

Article 20. Handling of auction results

1. Immediately after the end of the auction session, based on the auction results, the auction organization shall be responsible for making a minutes of auction result determination; The auction organization and debt purchase and sale enterprise shall co-sign the minutes of auction result determination. The minutes of auction result determination shall be made acccording to the form in the Appendix IIIissued together with Decree No. 140/2020/ND-CP.

2. Within 05 (five) working days after the end of the auction, the debt purchase and sale enterprise/auction organization shall jointly announce the auction results at the auction venue, on the websites of the auction organization and debt purchase and sale enterprise, and notify the winning investor of the auction winning results.

3. Within 07 (seven) days from the date of announcement of the share auction results, based on the notice of auction winning, the investor shall make full payment for purchase of the share lot with receivable debts according to the winning bid after deducting the deposit. Within such time limit, the debt purchase and sale 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 Regulation on Auction. Investors violating the Regulation on Auction shall be not entitled to deposit refund.

4. Transfer of the proceeds from the sale of lot of shares with receivable debts and list of investors who have paid money to the debt purchase and sale enterprise

a) Within 05 (five) working days from the deadline for payment by investors, the auction organization shall be responsible for transferring the proceeds from the sale of lot of shares with receivable debts and list of investors who have paid money to the debt purchase and sale enterprise.

b) Within 10 (ten) working days from the deadline for payment by investors, the debt purchase and sale enterprise shall send a dossier, including: The competent authority’s decision on approval of the plan for transfer of the lot of shares with receivable debts, the written request and the minutes of determining the investor winning the auction of the lot of shares with receivable debts (including the list of paid investors) to the Vietnam Securities Depository in cases of auction of shares in a joint-stock company that has registered its shares at the Vietnam Securities Depository.

c) Within 05 days from the date of receiving the dossier of the debt purchase and sale enterprise, the Vietnam Securities Depository shall be responsible for transferring ownership of the transferred capital portion of the debt purchase and sale enterprise to other organizations or individuals according to the dossier sent to the Vietnam Securities Depository by the debt purchase and sale enterprise.

In case a debt trading enterprise auctioning shares has not yet had its stock registered at the Vietnam Securities Depository, the procedures for transferring ownership of shares between the debt purchase and sale enterprise and the investor, after the investor completes payment for purchase of shares, shall comply with the Law on Enterprises and the joint-stock company’s charter.

d) The debt purchase and sale enterprise shall be responsible for coordinating with the joint-stock company in completing the procedures for transferring the ownership of shares with receivable debts to the investor, disclosing the information on procedures and specific time of completing the transfer of ownership of shares with receivable debts to the investor upon organization of the auction.

5. Based on the value of the debt and the value of the lot of shares when determining the reserve price as specified in Article 15 of this Circular, the debt purchase and sale enterprise shall decide to allocate the proceeds from the auction of the lot of shares with receivable debts for the lot of shares and debt according to the principle that the allocated amount shall be not lower than the value of the lot of shares and of the debt when determining the reserve price of the lot of shares with receivable debts.

6. In case the auction of share lots with receivable debts is unsuccessful, the Members’ Council or the company president of the debt purchase and sale enterprise shall decide to switch to the form of competitive offering.

Article 21. Competitive offering and agreement

1. The organization of implementation, determination of results, payment of proceeds from the sale of shares, preparation and submission of dossiers on transfer of ownership of shares and reports on transfer of share lots with receivable debts in the form of competitive offering shall be carried out in accordance with regulations on public auction method specified in Article 16, Article 17, Article 18, Article 19, Article 20 of this Circular.

2. In case only 01 (one) investor participates in the competitive offering of the lot of shares with receivable debts, the debt purchase and sale enterprise shall directly reach agreement with, and sell it to, the investor being subject of participation that has submitted a valid dossier and fully carried out the procedures to attend the competitive offering session in accordance with regulations with a price not lower than the reserve price of the competitive offering session.

3. After implementing the methods of public auction, competitive offering and agreement, in case of failure to transfer the lot of shares with receivable debts, the debt purchase and sale enterprise shall, based on market demand, choose the time of continuing to transfer such lot of shares with receivable debts according to the transaction methods and order of implementation specified in this Circular.

Article 22. Responsibilities of debt purchase and sale enterprises

1. Be responsible for organizing the transfer of shares with receivable debts in accordance with this Circular.

2. Prepare dossiers and disclose information on transfer of their share lots with receivable debts in accordance with Article 17 of this Circular.

3. Sign the minutes of determining the results of auction/competitive offering and announce the results of auction/competitive offering in accordance with Clauses 1 and 2, Article 20 and Article 21 of this Circular.

Article 23. Responsibilities of auction organizations

1. Decide on the establishment of auction/competitive offering councils (if any) and issue Regulations on auction/competitive offering of share lots with receivable debts.

2. Coordinating with debt purchase and sale enterprises in disclosing information and reporting the results of auction/competitive offering of share lots with receivable debts in accordance with this Circular.

3. Perform the transfer of share lots with receivable debts in accordance with this Circular and relevant law regulations.

Article 24. Responsibilities of joint-stock companies having contributed capital and receivable debts of debt purchase and sale enterprises

1. Coordinate with and provide necessary information for debt purchase and sale enterprises to compile dossiers of auction/competitive offering of share lots with receivable debts in accordance with regulations.

2. Coordinate with debt purchase and sale enterprises/auction organizations in transfer the ownership of contributed capital and creditor rights of receivable debts to the winning investor of the lot of shares with receivable debts.

Article 25. Responsibilities of investors

1. Investors purchasing shares shall be responsible for comply with the Regulations on transfer of share lots with receivable debts and this Circular.

2. In cases an investor receives transferred share lots with receivable debts of a public company and become a majority shareholder, the investor must perform the information disclosure regime in accordance with law regulations on securities.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 26. Transitional provisions

1. An restructuring enterprise with a restructuring plan approved by the owner-representing agency before the effective date of Decree No. 126/2017/ND-CP shall continue to carry out according to its approved restructuring plan. The settlement of financial matters, management and finalization of the proceeds from the equitization/restructuring at the time the enterprise officially transfers into joint-stock company shall comply with Decree No. 126/2017/ND-CP, Decree No. 140/2020/ND-CP, Circular No. 32/2021/TT-BTC, Circular No. 46/2021/TT-BTC and guidance in this Circular.

2. In case plans for transfer of share lots with receivable debts have been approved but the transfer has not yet been carried out until the effective date of this Circular, the transfer shall continue to be implemented according to the approved plans.  In case of adjustment of plans for transfer of share lots with receivable debts after the effective date of this Circular, the debt purchase and sale enterprises shall base on this Circular and relevant law regulations to decide on the transfer plans. 

3. After the Vietnam Securities Depository and Clearing Corporation officially operates in accordance with the Law No. 54/2019/QH14 on Securities, the contents applicable to the Vietnam Securities Depository shall be applied to the Vietnam Securities Depository and Clearing Corporation.

Article 27. Effect

1. This Circular takes effect on April 01, 2022.

2. This Circular replaces the following documents:

a) Circular No. 69/2018/TT-BTC dated August 08, 2018 of the Ministry of Finance on guiding the restructuring of state enterprises that are ineligible for equitization under the Government’s Decree No. 126/2017/ND-CP dated November 16, 2017 on transformation of state enterprises and single-member limited liability companies with 100% state enterprise-invested charter capital into joint-stock companies;

b) Circular No. 50/2019/TT-BTC dated August 08, 2019 of the Ministry of Finance on guiding the auction of share lots with receivable debts of state enterprises with the function of debt purchase, sale and settlement.

3. Any problem arising in the course of implementation should be promptly reported to the Ministry of Finance for consideration and settlement./.

* All Appendices are not translated herein.