Decree No. 109/2007/ND-CP dated June 26, 2007 of the Government on conversion of enterprises with 100% state owned capital into shareholding companies

DECREE

ON CONVERSION OF ENTERPRISES WITH 100% STATE OWNED CAPITAL INTO SHAREHOLDING COMPANIES

THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated 25 December 2001; Pursuant to the Law on State Owned Enterprises dated 26 November 2003; Pursuant to the Law on Enterprises dated 12 June 1999;

Pursuant to the Law on Securities dated 29 June 2006; On the proposal of the Minister of Finance;

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. The objectives of and requirements for converting enterprises with 100% State owned capital into shareholding companies (hereinafter referred to as equitization) are:

1. To convert enterprises in which it is unnecessary for the State to continue to hold 100% capital into enterprises with multiple owners; and to mobilize capital from both domestic and foreign investors to increase financial capacity and to renovate both technology and management methods in order to raise the efficiency and competitiveness of the economy.

2. To ensure harmony between the interests of the State, the enterprise, investors and employees of the enterprise.

3. To ensure public notification and transparency based on market principles; to overcome the situation of equitization taking place in secret within enterprises; and to ensure that equitization runs parallel with development of the capital market and the securities market.

Article 2. Entities eligible for equitization:

1. Independent State owned companies of ministries, industries and localities.

2. Parent companies of economic groups (hereinafter abbreviated as groups), State owned corporations (including State commercial banks).

3. Parent companies in parent subsidiary company groups1.

4. Independent cost accounting member companies of corporations for which the State made the decision on investment and establishment.

5. Dependent accounting affiliates of independent State owned companies, groups, State owned corporations, parent companies and [of] independent cost accounting member companies of corporations.

6. Limited liability companies in which the State holds 100% charter capital.

Article 3. Conditions for equitization

1. An enterprise stipulated in article 2 of this Decree may carry out equitization if it satisfies both the following conditions:

(a) It is not an enterprise in the category in which [it is necessary for] the State holds 100% charter capital. The Prime Minister of the Government shall issue a decision in each period on the list of enterprises in which it is necessary for the State to hold 100% charter capital;

(b) It still has State owned capital after finances have been dealt with and the enterprise has been re-valued.

2. A dependent accounting affiliate must also satisfy the following conditions in addition to the conditions specified in clause 1 of this article:

(a) It satisfies all the conditions for maintaining an independent cost accounting system;

(b) It's equitization will not cause difficulties for or adversely affect the production and business efficiency of the enterprise or of the remaining part of the enterprise;

(c) It is identified in the plan for overall restructuring of enterprises approved by the Prime Minister.

3. If the actual value of the enterprise is less than debts payable after finances have been dealt with and the enterprise has been re-valued pursuant to the provisions in Chapters II and III of this Decree, then it shall conduct the form of sale, dissolution or bankruptcy.

Article 4. Forms of equitization:

1. Maintaining the current State owned capital in the enterprise and an additional issue of shares in order to increase charter capital.

2. Selling part of the current State owned capital in the enterprise, or combining the sale of part of the current State owned capital in the enterprise with an additional issue of shares in order to increase charter capital.

3. Selling the whole of the current State owned capital in the enterprise, or combining the sale of the whole of the current State owned capital in the enterprise with an additional issue of shares in order to increase charter capital.

Article 5. Methods of initial share sale

1. The initial share sale shall be conducted by the method of a public auction, underwriting the issue, [or] direct agreement in accordance with the provisions in Chapter IV of this Decree.

2. The body making the equitization decision shall fix the appropriate method of share sale depending on the entities eligible to purchase shares and the conditions for purchasing.

3. The Ministry of Finance shall issue2 detailed guidelines on the methods of initial share sale as stipulated in this Decree.

Article 6. Entities eligible to purchase shares and conditions for purchasing:

1.Domestic investors:

(a)Domestic investors means Vietnamese individuals, economic institutions, and social organizations established and operating pursuant to the law of Vietnam;

(b) Domestic investors shall have the right to purchase an unlimited number of shares in an equitized enterprise, except in the case stipulated in clause 4 of this article.

2. Foreign investors:

(a) Foreign investors means foreign organizations and individuals who spend capital to conduct investment activities in Vietnam;

(b) Foreign investors shall be permitted to purchase shares in an equitized enterprise in accordance with the provisions of this Decree and other relevant laws;

(c) A foreign investor wishing to purchase shares must open a deposit account at an organization providing payment services which is currently operating in the territory of Vietnam, and must comply with the law of Vietnam. All activities being the purchase and sale of shares, the receipt and use of dividends, and other receipts and expenditures from investment in the purchase of shares must be conducted via such account.

3. Strategic investors:

(a) Strategic investors means domestic investors and foreign investors with financial and enterprise management capability; [who] transfer new technology, supply raw materials, [and/or] develop the product consumption market; [and whose] long-term interests are closely connected with the enterprise;

(b) The Steering Committee for Equitization shall submit to the person making the equitization decision [a plan on] the initial share sale to strategic investors and the criteria for selecting strategic investors;

(c) Strategic investors shall be entitled to purchase shares at a price not less than the average successful auction price. If it is absolutely necessary for a group or State owned corporation (including a State commercial bank) to select a strategic investor, then the body making the equitization decision shall report to the Prime Minister of the Government to hold separate tendering between strategic investors;

(d) Strategic investors shall not be permitted to transfer purchased shares for a minimum period of three years from the date on which a business registration certificate is issued to the shareholding company. If in special circumstances these shares are required to be transferred before expiration of the above period, there must be approval from the general meeting of shareholders.

4. Where an enterprise carries out equitization simultaneously with immediate listing on the Stock Exchange/Securities Trading Centre, then the body authorized to approve the equitization plan shall fix the maximum or minimum number of subscribed shares applicable to the public sale in the plan for the initial share issue so that the enterprise after equitization will satisfy all listing conditions. The maximum or minimum number of subscribed shares stipulated in the plan for the initial share issue shall apply to investors in all economic sectors without discrimination.

5. Members of the Steering Committee for Equitization (except for a member being a representative of an enterprise), intermediary financial institutions, and individuals providing consultancy or [conducting the] valuation or auction for sale of shares of the equitized enterprise shall not be permitted to participate in the auction for purchase of shares initially issued by such enterprise.

Article 7. Currency for payment of purchase of shares

Both domestic investors and foreign investors must purchase shares in an enterprise in Vietnamese dong.

Article 8. Equitization expenses

The expenses of conducting equitization shall be deducted from State owned capital or from the proceeds earned from equitization of the enterprise. The Ministry of Finance shall provide guidelines on the contents and level of equitization expenses.

Article 9. Shareholding and shares

1. Charter capital divided into a number of equal parts is referred to as shareholding. The par value of each unit of shareholding shall be ten thousand (10,000) Vietnamese dong.

2. A share means a certificate issued by a shareholding company or a book entry confirming ownership by the shareholder of one unit or a number of units of shareholding in the company. Shares may be named or bearer shares but must contain all of the basic items stipulated in article 85 of the 2005 Law on Enterprises.

Article 10. Principles for inheritance of rights and obligations by the shareholding company after conversion from an enterprise with 100% State owned capital

1. An equitized enterprise shall be responsible to restructure, to employ the maximum number of employees as at the time of the equitization decision, and to resolve the regime for resignation and retrenchment of employees in accordance with current regulations.

A shareholding company shall be responsible to inherit all obligations in respect of employees from the converted enterprise; and shall have the right to select, arrange and employ employees and to co-ordinate with the relevant authorities in resolving the regime for employees in accordance with law.

2. An equitized enterprise shall be responsible to co-ordinate with the relevant authority in checking and dealing with financial issues in order to evaluate the State capital portion at the time of official conversion into a shareholding company.

3. A shareholding company shall be entitled to use the whole of the assets and capital sources which have been handed over in order to organize production and business; and shall inherit all interests, obligations and liabilities which the equitized enterprise hands over and shall have the other rights and obligations stipulated by law.

The shareholding company shall not be liable for obligations and liabilities of the equitized enterprise identified after completion of accounting finalization and handover to the shareholding company.

Article 11. Ensuring public notification and transparency of information, and listing on the securities market

1. An equitized enterprise must publicly provide transparent information about the enterprise, the equitization plan, the status of management and use of land, and about employees in accordance with the Law on Enterprises and other laws.

2. An enterprise whose status satisfies all the conditions for listing on the securities market in accordance with the law on securities must formulate its equitization plan to ensure a shareholding structure for listing on the Stock Exchange or a Securities Trading Centre.

The body making the equitization decision shall stipulate equitization simultaneously with listing on the securities market in the equitization plan in order to announce same for the information of investors prior to the initial share sale. The representative of the State owned capital portion in the enterprise shall be responsible to vote at the first general meeting of shareholders to pass a resolution on listing.

Article 12. Consultancy on equitization

1. An equitized enterprise shall be permitted to hire a consultancy organization to value the enterprise; to formulate an equitization plan and to [conduct] the initial share sale.

2. The body making the equitization decision may select an organization to provide consultancy on equitization in accordance with law and guidelines of the Ministry of Finance.

3. The costs of hiring an organization to provide consultancy on equitization shall be included in equitization expenses.

Chapter II

DEALING WITH FINANCES ON EQUITIZATION

Article 13. Inventory, classification of assets and dealing with existing financial issues

1. Upon receipt of the decision to undergo equitization from the authorized body, the enterprise shall be responsible to carry out an inventory and classification of the assets which the enterprise is managing and using as at the date of valuation of the enterprise.

2. The enterprise to be equitized shall be responsible to conduct an audit of the annual financial statements in accordance with State regulations. If the date of valuation of the enterprise does not coincide with the end of the financial year, the enterprise to be equitized shall be responsible to prepare financial statements as at the date of valuation of the enterprise.

3. Based on the result of the inventory and audit of the annual financial statements, the enterprise to be equitized shall be responsible to co-ordinate with the relevant bodies in taking the initiative to deal with existing financial issues, in accordance with authority and in accordance with regulations, prior to conducting the valuation of the enterprise to be equitized.

In a case of difficulties or in a case exceeding authority, the enterprise must report to the authorized body for its consideration and resolution.

If a report has been made to the authorized body but the issue remains unresolved, the issue must be specified in the Minutes of valuation of the enterprise to be equitized in order to provide a basis for further resolution in the stage after valuation and prior to official conversion to a shareholding company.

Article 14. Dealing with leased or borrowed assets, assets received as joint venture capital contribution, joint assets, assets not required to be used, and investments funded by the Reward and Welfare Funds

1. Assets which an enterprise to be equitized leases, borrows or receives as joint venture capital contribution, and joint assets and other assets which do not belong to the enterprise shall not be included in the value of the enterprise to be equitized. Prior to conversion to a shareholding company, the enterprise to be equitized must reach agreement with the owners of assets in order for the shareholding company to inherit previously signed contracts or to liquidate the contracts.

2. With respect to assets not required to be used, idle stock and assets awaiting liquidation, the enterprise to be equitized shall be responsible to deal with these assets in accordance with current regulations on financial management (by liquidation or agreement to sell). If these assets were not able to be dealt with by the time of valuation of the enterprise, they shall not be included in the value of the enterprise and shall be transferred to the following bodies:

(a) A company specializing in the purchase and sale of debts and idle stock for such company to realize in accordance with law, applicable to the enterprises stipulated in clauses 1, 2 and 3 of article 2 of this Decree and to limited liability companies in which the State owns 100% charter capital of ministries, ministerial equivalent bodies, Government bodies or peoples committee of provinces and cities under central authority;

(b) A group, State owned corporation, parent company or independent State owned company for such body to realize in accordance with regulations, applicable to the enterprises stipulated in clauses 4 and 5 of article 2 of this Decree and to limited liability companies in which a group, corporation or parent company owns 100% charter capital.

3. Welfare buildings such as kindergartens, children's nurseries and outpatient clinics and other welfare assets the investment in which was funded by the Reward and Welfare Funds shall be handed over to the shareholding company for management and use for the benefit of the labour collective in the equitized enterprise.

Residences of staff and officials the investment in which was funded by the Reward and Welfare Funds of the enterprise, including residences funded by the State Budget, shall be transferred to the local land and housing authority for management.

4. Assets used in production and business the investment in which was funded by the Reward and Welfare Funds of the equitized enterprise shall be included in the value of the enterprise, and the shareholding company shall continue to use them in production and business. The equitized enterprise shall be responsible to refund to the Reward and Welfare Funds the amount of capital equivalent to the value of these assets, to be divided amongst employees working at the enterprise at the time of valuation of the enterprise.

Article 15. Debts receivable

1. An enterprise undergoing equitization shall be responsible to review, confirm and recover debts which are due and receivable prior to equitization. If, by the time of valuation of the enterprise, there are still arrears of bad debts, they shall be dealt with in accordance with current State regulations on dealing with arrears of bad debts.

2. The enterprise undergoing equitization shall be responsible to handover all irrecoverable debts which have been excluded from the valuation of the equitized enterprise (together with files on the debts and other relevant data) to the relevant body stipulated in article 14.2 of this Decree.

3. With respect to items paid in advance to suppliers of goods and services, such as rent for housing or land and purchase price of goods and wages, these items must be reviewed against contracts and the volume of goods and services provided, in order to be included in the value of the enterprise.

Article 16. Debts payable

1. Debts payable by organizations and individuals:

An enterprise to be equitized must mobilize legally sourced capital in order to pay debts which mature prior to conducting equitization, or it must agree with creditors on dealing with the debts or on their conversion into shareholding capital contribution.

The conversion of due debts payable at the time of valuation of the enterprise into shareholding capital contribution shall be implemented on the basis of results of the successful auction obtained by creditors [also taking part in the auction].

2. Tax and State budget debts:

An enterprise to be equitized shall be responsible to pay tax and debts owing to the State budget prior to conversion; if the equitized enterprise fails to completely discharge its tax obligations, then the shareholding company shall be responsible to inherit all of such debts.

3. If during the equitization process the enterprise to be equitized is in difficulty regarding ability to repay overdue debts (loans from State commercial banks and the Vietnamese Development Bank) because the business has incurred losses, the debts shall be dealt with in accordance with current State regulations on dealing with arrears of bad debts.

Article 17. Reserves, losses or profits

1. Reserves for reduction of the price of goods in stock, for bad debts, for reduction in the value of securities, and for exchange rate differences shall be used to cover all losses in accordance with current regulations; any balance of such reserves shall be accounted for as increase in State owned capital.

2. The enterprise undergoing equitization shall set aside a reserve for retrenchment allowances in accordance with the State regime and use it to pay allowances to employees who become redundant during the equitization process; any balance by the time of official conversion into a shareholding company shall be accounted for as increase in State owned capital at the time of handover.

3. After reserves for risks and professional reserves of the banking and insurance systems are used to cover losses in accordance with regulations, any balance shall belong to the equitized enterprise but shall be included in the commencement price when making the initial share issue.

4. After financial reserves to cover losses (if any) and financial reserves to cover loss and damage to assets and irrecoverable debts are used to compensate losses (if any) caused by individuals, their balance shall be included in the value of the State owned capital portion in the enterprise undergoing equitization.

5. The balance in reserves of earned profit in order to cover losses (if any) from previous years in accordance with the Law on Corporate Income Tax and to cover loss and damage to assets not required to be used, assets awaiting liquidation, reduction in the value of assets, and debts unable to be collected shall be distributed in accordance with current regulations prior to valuation of the enterprise.

6. After losses have been dealt with by the time of valuation of the enterprise undergoing equitization in accordance with the above-mentioned provisions but there still remain some losses, the enterprise undergoing equitization shall be responsible to co-ordinate with the Vietnamese Development Bank (previously known as the Development Assistance Fund) and State commercial banks in order to write off debts being interest on borrowings in accordance with current State regulations on dealing with arrears of bad debts.

Article 18. Long-term investment capital in other enterprises such as joint venture capital contribution, associated ventures, shareholding capital contribution, capital contribution to establishment of limited liability companies, and other forms of long-term investment

1. If an enterprise undergoing equitization inherits long-term investment capital in other enterprises, the whole of such capital shall be included in the value of the enterprise to be equitized in accordance with the principles stipulated in article 32 of this Decree.

2. If an enterprise undergoing equitization does not inherit long-term investments made in other enterprises, it must report to the authorized body to deal with them as follows:

(a) Transfer them to another enterprise with 100% State owned capital to act as party;

(b) If the investments are not so transferred, the enterprise undergoing equitization must inherit them to include them in the value of the enterprise in accordance with clause 1 of this article.

Article 19. Cash balance in Reward and Welfare Funds

Any cash balance in the Reward and Welfare Funds shall be distributed to the current workforce in the enterprise at the time of valuation of the enterprise in accordance with the number of years they have worked at the enterprise undergoing equitization.

Article 20. Cash balance in Assistance Fund for Restructure of Enterprises at the enterprise

Any cash balance in the Assistance Fund for Restructure of Enterprises at the enterprise undergoing equitization shall be accounted for as increase in State owned capital in the enterprise.

Article 21. Dealing with finances at the time the enterprise is officially converted into a shareholding company

1. Based on the value of the enterprise to be equitized as decided by the body making the equitization decision, the enterprise shall be responsible for adjusting accounting data in books of account; for preserving and handing over debts and assets which have been excluded upon valuation of the enterprise pursuant to the provisions in articles 14.2 and 15.2 of this Decree; and for preparing financial statements for the enterprise for the period from the date of valuation of the enterprise to the date of official conversion of the enterprise into a shareholding company.

2. Within one (1) month from the time it is issued with its initial business registration certificate, an equitized enterprise must complete preparation of financial statements as at the time of business registration, [complete] determination of the value of the State owned capital portion as at the time of official conversion into a shareholding company, and [complete] dealing with financial issues which needed to be dealt with.

3. The difference being an increase between the actual value of the State owned capital portion as at the time when the enterprise converts to a shareholding company and the actual value of the State owned capital portion as at the time of the valuation shall be dealt with as follows:

(a) Paid into the Assistance Fund for Restructuring Enterprises at a group, State owned corporation or parent company when a member company, subsidiary company or dependent accounting affiliate of such enterprise is equitized, or to an independent State owned company or an independent accounting member company when such sections of these companies are equitized;

(b) Paid into the Assistance Fund for Restructure of Enterprises of the State Capital Investment Corporation when the whole of an independent State owned company, the whole of a group, a State owned corporation or a parent company is equitized.

4. Where the difference is a decrease, the equitized enterprise shall be responsible to report to the body making the decision on equitization in order for the latter to co-ordinate with the relevant bodies to check and clarify the reasons and to determine the liabilities of the collective and/or of individuals and to deal with such difference as follows:

(a) If the reasons were objective (natural calamity or enemy destruction; change of State policy due to international market fluctuations and other reasons of force majeure), the equitized enterprise shall report to the body making the decision on equitization to consider and make a decision on using the proceeds from the sale of shares to offset losses after allowing for receipt of insurance proceeds (if any). If the proceeds from the sale of shares are insufficient to offset losses, then the body making the decision on equitization shall consider and make a decision on adjusting the scale and structure of charter capital of the shareholding company.

(b) If the reasons were subjective:

- If losses were due to not completely dealing with the existing financial issues in accordance with current State regulations when the value of the enterprise was determined, the liability of relevant bodies such as the enterprise itself, the consultants on valuation or the body making the equitization decision must be clearly confirmed, in order to process compensation for material loss;

- If losses were due to operation of production and business, then the managers of the enterprise shall be liable to pay compensation in accordance with current regulations for the total loss subjectively caused;

- If for reasons of force majeure the person liable to pay compensation is unable to do so in accordance with the decision of the body making the equitization decision, the remaining loss shall be dealt with as if it was due to objective reasons as stipulated in sub-clause (a) above.

(c) If after implementing the above-mentioned provisions there is still insufficient to cover the decrease, the shareholding company shall be liable to inherit the losses.

Chapter III

VALUATION OF ENTERPRISE UNDERGOING EQUITIZATION

Section 1. CONDUCTING VALUATION OF ENTERPRISE

Article 22. Consultancy on valuation of enterprise

1. If an enterprise undergoing equitization has total asset value in its books of account of thirty (30) billion Vietnamese dong or more or has a value of State owned capital in its books of account of ten (10) billion Vietnamese dong or more, or has an advantageous geographical position, it must hire valuation consultants such as an auditing company, a securities company, a price evaluation institution or a domestic or foreign investment bank with the valuation function (hereinafter all referred to as a valuer) to conduct a valuation of the enterprise.

2. It shall not be compulsory for an enterprise undergoing equitization not in the category stipulated in clause 1 of this article to hire a valuer to conduct a valuation of such enterprise; if an enterprise does not hire a valuer then it shall be permitted to conduct its own valuation and shall notify the result to the body authorized to make the decision valuing the enterprise.

3. The body making the equitization decision shall select a valuer from the list announced by the Ministry of Finance. If two or more valuers register to participate in providing valuation consultancy services, tendering shall be held in accordance with current regulations to select one of them.

4. The valuer shall be permitted to select appropriate methods of valuing an enterprise in order to make the valuation, ensuring the principles stipulated in this Decree, and must complete on time all undertakings in the signed contract. The enterprise undergoing equitization shall be responsible to provide complete and truthful information relating to such enterprise for the valuer to use during the valuation process.

The valuer shall be liable for the results of valuation of the enterprise. In a case in which such results do not comply with State regulations, the body making the equitization decision may refuse to pay fees for such services, and if such results cause loss and damage to the State then the valuer must pay compensation and shall be excluded from the list of organizations which satisfy all the conditions for participating in valuations.

5. Domestic and foreign valuers wishing to participate in providing services of valuations of enterprises undergoing equitization must satisfy the criteria stipulated by the Ministry of Finance.

Article 23. Methods of valuation of enterprise

Methods of valuation of an enterprise shall comprise the asset method, the discounted cash flow method, and other methods.

The value of an enterprise as determined and announced shall not be lower than the value of such enterprise determined by using the asset method as regulated in Section 2 of this Chapter.

Article 24. Announcement of the value of the enterprise

1. Based on the valuation file prepared by the valuer (or by the enterprise itself), the Steering Committee for Equitization shall be responsible to examine the order, procedures and compliance with the law on valuation of enterprises and make a submission to the body authorized to make the decision valuing the enterprise to make its decision.

2. The body authorized to make the decision valuing the enterprise shall be responsible to consider the matter, make a decision and announce the value of the enterprise within ten (10) days from receipt of a complete file.

Article 25 Use of results of valuation of enterprise

The results of a valuation of an enterprise announced by the authorized body shall be the basis for fixing the scale of charter capital, the structure of the initial share issue, and the commencement price for holding the auction to sell shares.

Article 26. Adjustment of value of enterprise

1. The enterprise undergoing equitization shall adjust its announced value in the following cases:

(a) Fluctuations in the value of assets of the enterprise due to objective reasons (natural calamity or enemy destruction, change of State policy or other reasons of force majeure);

(b)The enterprise has still not been equitized twelve (12) months after the date of the valuation.

2.The provisions in clause 1 of this article shall only apply when an enterprise undergoing equitization has not yet conducted the share sale.

3. The body making the equitization decision shall be responsible to consider and make a decision on adjustment of the value of the enterprise undergoing equitization and to re-announce it. The decision adjusting the value of the enterprise shall provide the basis for preparing the equitization plan.

Section 2. VALUATION OF ENTERPRISE BY ASSET METHOD

Article 27. Value of enterprise undergoing equitization in accordance with asset method

1. The actual value of an enterprise undergoing equitization shall be the total value of all its existing assets as at the time of equitization, including the profitability of the enterprise as accepted by both the purchaser and the seller of shareholding.

The actual value of the State owned capital portion in an enterprise undergoing equitization shall be its actual value less debts payable, less the balance in the Reward and Welfare Funds, and less the balance (if any) of professional funding sources.

2. In the case of equitization of an entire group or State corporation, the actual value of the State owned capital portion shall be the actual value of the State owned capital fixed in such group or State corporation.

3. In the case of equitization of a parent company in a parent subsidiary company group, the value of the State owned capital shall be the actual value of the State owned capital in the parent company.

4. When the valuation of an enterprise is performed in accordance with the asset method, financial and credit institutions shall be permitted to use the results of audited financial statements in order to value assets in cash and liabilities; however, these institutions must conduct an inventory and assessment of fixed assets, long-term investments and the value of land use rights in accordance with State regulations.

Article 28. Items which shall not be included in the value of an enterprise for equitization purposes:

1. Value of the assets stipulated in clauses 1, 2 and 3 of article 14 of this Decree.

2. Debts receivable but which the enterprise does not have the ability to collect.

3. Expenses of unfinished capital construction works in abeyance prior to the time of valuation of the enterprise pursuant to a decision of the authorized body.

4. Long-term investments in other enterprises stipulated in clause 2(a) of article 18 of this Decree.

5. The body authorized to make the decision valuing the enterprise shall consider and make a decision on excluding the items stipulated in clauses 1, 2, 3 and 4 of this article from the value of the enterprise for equitization purposes, and shall be liable for its decision.

Article 29. Bases for determining actual value of enterprise:

1. Data from the books of account of the enterprise at the time of its valuation.

2. Data from the inventory, classification and assessment of quality of assets of the enterprise at the time of its valuation.

3. Market value of assets at the time of holding the valuation.

4. Value of land use rights assigned or leased, and the value of business advantages of the enterprise.

Article 30. Value of land use rights

1. With respect to areas of land which the enterprise undergoing equitization is currently using as land for construction of its head office, transaction office or production and business establishment, or land for the purposes of agriculture, forestry, aquaculture and salt mining (including land which has been allocated by the State with or without collection of land use fees), the enterprise undergoing equitization shall prepare a land use plan and submit it to the authorized body for approval. The enterprise shall be entitled to the form of land lease or land allocation in accordance with the Law on Land.

If land was allocated to the enterprise but it now selects the form of land lease, it must complete procedures for changing to the form of land lease and send [the results] to the body making the equitization decision and to the local land and housing authority before it officially converts into a shareholding company.

2. If land was allocated to the enterprise undergoing equitization (including any area of land allocated by the State to the enterprise for construction of houses for sale, lease, hotel business, commercial services business, or for construction of infrastructure for assignment or lease), the value of land use rights shall be included in the value of the enterprise in accordance with the land price regulated and announced by the people's committee of the province and city under central authority where the land is situated.

3. If the enterprise undergoing equitization selects the form of land lease:

(a) If the enterprise pays annual rent, such rent shall not be included in the value of the enterprise;

(b) If the enterprise pays rent once for the whole land lease term, such rent shall be included in the value of the enterprise at a price close to the market price at the time of valuation as regulated and announced by the relevant people's committee of the province and city under central authority.

4. If the land price is used to set the value of the land use right and the rent is not close to the actual market price for assigning land use rights in normal market conditions at the time of equitization, then the people's committee of the province or city under central authority shall make a decision on an appropriate specific land price.

Within thirty (30) days from the date of sending a complete file, if a written document on the land price has not been received from the people's committee, then the body authorized to make the decision valuing the enterprise shall be entitled to include the value of the land use right and the rent value in the value of the enterprise in accordance with the equitization plan as proposed, but such values proposed by the enterprise must not be lower than values in accordance with the land price announced and reported to the people's committee of the province and city under central authority.

5. People's committee of provinces and cities under central authority shall be responsible to instruct functional bodies to guide enterprises undergoing equitization to conduct all procedures for issuance of land use rights certificates or for signing land lease contracts in accordance with the current law on land, prior to official conversion to shareholding companies.

Article 31. Value of business advantages of the enterprise

1. The value of business advantages of the enterprise undergoing equitization shall comprise the value of advantages of its geographical position, the value of trade names, and its potential for development.

2. The value of business advantages of the enterprise undergoing equitization shall be considered and decided by the body making the equitization decision, but must not be lower than the value of business advantages determined in accordance with guidelines of the Ministry of Finance.

Article 32. Determining value of long-term investment capital of the enterprise undergoing equitization in other enterprises

1. The value of the long-term investment capital of an enterprise undergoing equitization in other enterprises shall be determined on the following bases:

(a) Investment capital ratio of the enterprise undergoing equitization over the charter capital or total actual capital contribution in other enterprises;

(b) Value of the capital of the owner in other enterprises recorded in the audited financial statements. If the financial statements have not yet been audited, the basis shall be the value of the capital of the owner recorded in the most recent financial statements of such enterprise;

(c) In a case in which capital investment is made in a foreign currency, it must be converted into Vietnamese dong at the average trading exchange rate on the inter-bank foreign exchange market as announced by the State Bank at the date of valuation;

(d) If the value of long-term investment capital of the enterprise undergoing equitization in other enterprises is lower than the value recorded in the books of account, it shall be determined in accordance with the value recorded in the books of account of the enterprise undergoing equitization.

2. The value of the capital contribution of the enterprise undergoing equitization in shareholding companies listed on the securities market shall be determined on the basis of the share trading price on the securities market at the time of valuation of the enterprise.

Section 3. VALUATION OF ENTERPRISE BY DISCOUNTED CASH FLOW METHOD

Article 33. Valuation of enterprise to be equitized in accordance with discounted cash flow method

1. The actual value of the State owned capital portion in an enterprise shall be determined in accordance with the discounted cash flow method on the basis of profitability of the enterprise in the future.

In the case of determination of the value of the whole of a corporation in accordance with this method, the profitability of the corporation shall be determined on the basis of profit earned by the State corporation in accordance with regulations on management of finances of State corporations.

If the enterprise invests capital in other enterprises, profit derived from capital investment in such other enterprises shall also be a basis for determination of the value of the enterprise.

2. The actual value of an enterprise shall comprise the actual value of the State owned capital portion, debts payable, balance in the Welfare and Reward Funds and the balance of professional funding sources (if any).

Where an enterprise selects the form of land allocation [or] land lease with rent payment once [for the whole land lease term], the value of land use rights and the value of rent must be calculated and added to the value of the enterprise in accordance with article 30 of this Decree.

Article 34. Bases for determination of the value of an enterprise in accordance with the discounted cash flow method:

1. Financial statements of the enterprise in the last five consecutive years prior to the time of valuation of the enterprise.

2. Plans for manufacturing or trading activities of the enterprise for the three to five years after conversion into a shareholding company.

3. The rate of interest on Government bonds with a term of five years at the most recent time prior to conducting valuation of the enterprise and the cash flow discount co-efficient of the enterprise to be valued.

Chapter IV

INITIAL SHARE SALE AND MANAGEMENT AND UTILIZATION OF PROCEEDS OF EQUITIZATION

Article 35. Determination of charter capital and initial share structure

1. Based on the results of announcement of the value of the State owned capital portion in the enterprise undergoing equitization and the plan for business and production for the years following conversion to a shareholding company, the body making the equitization decision shall decide the scale and structure of the charter capital:

(a) In the case of sale of the State owned capital portion in the enterprise, the charter capital shall be fixed [determined] at not less than the actual value of the State owned capital portion in the enterprise;

(b) In the case of an additional issue of shares, the charter capital shall be fixed as equal to the actual value of the State owned capital portion in the enterprise plus the value of the additionally issued shares calculated at their par value.

2. Based on the fixed [determined] charter capital, the body making the equitization decision shall decide the initial share capital structure, comprising:

(a) Shareholding which the State shall hold, the ratio of which shall be fixed in accordance with the criteria for classifying State owned enterprises as announced by the Prime Minister in each period. With respect to an enterprise in which the State is not required to hold controlling shares, the body making the equitization decision shall consider and decide the appropriate ratio of shareholding which the State shall hold.

(b) Shareholding for sale to strategic investors and other investors shall not be less than twenty- five (25) per cent of the charter capital, (except for the case stipulated in clause 3(b) of this article). Shareholding for sale to other investors shall not be less than fifty (50) per cent of the above-mentioned number of shares3.

With respect to enterprises on a large scale with State owned capital above 500 billion VND or conducting business in specialized sectors and industries (insurance, banking, posts and telecommunications, aviation, rare mineral exploitation), the ratio of shares auctioned to investors shall be considered and specifically decided by the authorized body.

(c) Shareholding for sale to the trade union at the enterprise undergoing equitization:

The trade union at the enterprise undergoing equitization shall be permitted to use legal Funds (of the trade union) at the enterprise (but not by raising or borrowing capital) to purchase shares but not in excess of three (3) per cent of the charter capital. These shares shall be held by the trade union and shall not be assignable. The Ministry of Finance and Vietnam General Confederation of Labour shall provide guidelines on use of legal Funds for the purpose of purchasing shares on the principle of ensuring the interests of the employees of the enterprise.

(d) Shareholding for sale at incentive rates to employees of the enterprise as provided for in clause 1 article 51 of this Decree.

3. If the amount of shares for sale at incentive rates to employees of the enterprise (calculated at the maximum incentive) is greater than the amount of shares proposed to be left for issue (after deducting the shares that the State holds and the shares for sale to investors and to the trade union in accordance with clauses 2(a), (b) and (c) of this article):

(a) If the enterprise is not in the category of those in which the State must hold controlling shares, the body making the equitization decision shall consider and make a decision on reducing the number of shares the State holds in order to increase the number [available] for sale at incentive rates to employees;

(b) If the enterprise is in the category of those in which the State holds controlling shares, the body making the equitization decision shall consider and make a decision on adjusting the charter capital in order to reasonably increase the number of shares for sale at incentive rates to employees in the enterprise or to reduce the number for sale to strategic investors and normal investors, but ensuring that shares for sale to strategic investors and normal investors are not less than twenty (20) per cent of the charter capital.

Article 36. Announcement of information

1. At least twenty (20) days prior to the initial share sale, the Steering Committee for Equitization must make a public announcement at the enterprise, at the place where the auction will be held, and on the mass media about:

(a) Information on the enterprise undergoing equitization (including the result of valuation of enterprise);

(b) Main contents of the approved equitization plan;

(c) Information on the share sale (including information about sale of shares to strategic investors);

(d) Draft charter on organization and operation of the shareholding company in accordance with the Law on Enterprises.

2. The Ministry of Finance shall provide detailed provisions on items of information to be announced.

Article 37. Selling price of initial shares

1. Selling price in the method of public auction means the successful price of each investor. In accordance with this method, any investor who wins an auction at whatever price must purchase shares at such price.

2. The selling price of incentive shares to employees of an enterprise shall be equal to sixty (60) per cent of the average successful auction price stipulated in clause 1 of this article.

With respect to enterprises with special difficulties in remote or distant areas, the selling price of incentive shares to employees may be lower as decided by the Prime Minister.

3. Selling price in the method of underwriting the issue or direct agreement means the selling price of shares to investors in accordance with the result of negotiations between the Steering Committee for Equitization and the underwriter or the price negotiated directly with the investor. Selling price in the method of underwriting the issue or direct agreement must ensure the principle of not less than the average successful auction price in a public auction stipulated in clause 1 of this article.

4. Selling price to the trade union at the enterprise undergoing equitization means the incentive selling price to employees stipulated in clause 2 of this article.

Article 38. Auction method

1. The auction method shall be applied in the case of sale of a public auction of shares irrespective of whether investors are organizations, individual investors, domestic investors or foreign investors.

2. Holding a public auction:

(a) Auction at an intermediary financial institution if the volume of shares for sale is lower than ten (10) billion Vietnamese dong.

Where no intermediary financial institution agrees to conduct the auction of shares, the Steering Committee for Equitization shall directly organize the auction at the enterprise.

(b) Auction at the Stock Exchange or a Securities Trading Centre if the volume of shares for sale is above ten (10) billion Vietnamese dong.

Where an enterprise undergoing equitization with a volume of share for sale lower than ten (10) billion Vietnamese dong wishes to hold an auction at the Stock Exchange or a Securities Trading Centre, the body making the equitization decision shall make a decision.

(c) The Steering Committee for Equitization shall decide on the selection of the Stock Exchange or a Securities Trading Centre or the hire of an intermediary financial institution to hold the auction; and shall register the auction plan with the Stock Exchange or Securities Trading Centre and at the same time report to the Ministry of Finance to make a decision on the plan to hold an auction on the securities market.

Article 39. Order for holding initial share auction

1. The initial share auction shall be held in the following order:

(a) The authorized representative of the enterprise undergoing equitization shall sign a contract for holding the auction with an intermediary financial institution, the Stock Exchange or a Securities Trading Centre;

(b) There shall be publication of information in accordance with article 36 of this Decree;

(c) There shall be a briefing for investors (if necessary);

(d) The intermediary financial institution, the Stock Exchange, the Securities Trading Centre or the Steering Committee for Equitization shall hold the auction.

2. The Ministry of Finance shall provide4 detailed regulations on the order for holding share auctions and on the responsibilities of relevant bodies regarding holding share auctions.

Article 40. Dealing with the number of shares which investors refuse to buy in the initial share sale

1. In a case where a successful investor at auction does not purchase or does not purchase the whole number of shares it has the right to purchase in accordance with the announced results of the auction, such investor shall not be entitled to a refund of the deposit corresponding to the number of shares refused to purchase.

2. If the number of shares refused to purchase is less than thirty (30) per cent of the total number of shares offered for sale, the Steering Committee for Equitization shall consider making a decision to continue sales to investors who participated in the auction pursuant to the provisions of article 42.3 of this Decree.

3. If the number of shares refused to purchase is equal to or higher than thirty (30) per cent of the total number of shares offered for sale, the Steering Committee for Equitization shall hold a further auction of the number of shares refused to purchase.

4. If shares are still not all sold, the Steering Committee for Equitization shall report to the body making the decision on equitization for resolution pursuant to the provisions of article 43 of this Decree.

Article 41. Method of underwriting the issue

1. The method of underwriting the issue shall be applied in cases of initial share sale to a certain number of investors in accordance with certain conditions on providing undertakings after holding a public auction pursuant to the provisions in article 38.1 of this Decree.

2. Underwriters of the issue must satisfy the following conditions:

(a) Have the function of underwriting share issues and be licensed by the competent State body;

(b) Undertake to sell all of the underwritten shares, otherwise they shall be responsible to purchase all unsold shares at the underwritten price.

3. The rights and obligations of underwriters shall be in accordance with the law on securities and the securities market, and the contract for underwriting the share issue signed with the authorized representative of the enterprise undergoing equitization.

Article 42. Method of direct agreement

1. The method of direct agreement shall be applied in the following cases:

(a) Sale of shares to strategic investors after the public auction;

(b) Sale of shares to investors who participated in the auction and have a need to further purchase the number of shares [other] investors refused to purchase.

2. Sale of shares to strategic investors after the public auction:

(a) The Steering Committee for Equitization shall select strategic investor/s in accordance with the criteria approved by the authorized body. If a number of investors satisfy the conditions to become strategic investors, then the Steering Committee for Equitization may select strategic investor/s by the competitive quotation method;

(b) On the basis of the results of selection of strategic investor/s, the Steering Committee for Equitization shall negotiate with strategic investor/s the share sale price on the principle stipulated in article 37.3 of this Decree;

(c) Strategic investor/s must pay a deposit of ten (10) per cent of the value of the shares they are eligible to purchase at the commencement price decided by the Steering Committee for Equitization. Investors who abandon their right to purchase shall not be entitled to a refund of their deposit.

3. Sale of shares to investors who participated in the auction and have a need to further purchase the number of shares [other] investors refused to purchase:

(a) The Steering Committee for Equitization and the body conducting the share auction must publicly announce the number of shares investors refused to purchase so that investors who participated in the auction may register to further purchase;

(b) Based on the number of shares registered to purchase, the Steering Committee for Equitization shall consider selling in the order of highest to lowest price on the principle stipulated in article 37.3 of this Decree.

Article 43. Dealing with unsold shares

1. If the residual number of unsold shares is under fifty (50) per cent of the number of shares offered for sale (except for shares for which the issue was underwritten) then there shall be an adjustment of the scale and structure of charter capital (an increase in State owned capital contributed to the enterprise) in order to convert the enterprise into a shareholding company.

2. If the residual number is from fifty (50) per cent or more of the number of shares offered for sale (except for shares for which the issue was underwritten) then the body making the equitization decision shall consider an adjustment of the commencement price (the maximum must be equal to the par value of the shares) and hold a further auction to sell the remaining shares.

3. Where the commencement price has been adjusted to equal to the par value of the shares but there no investor has registered to participate in the auction or the remaining shares cannot be fully sold, then the body making the equitization decision shall deal with the matter in accordance with clause 1 of this article.

Article 44. Time-limit for completion of sale of shares

Within a time-limit of three (3) months from the date of the decision approving the equization plan, the enterprise must complete the sale of shares (including sale of shares by the methods of underwriting the issue and sale by direct agreement).

Article 45. Management and utilization of proceeds from equitization

1. In the case of sale of the State owned capital portion in the enterprise:

(a) The proceeds from equitization of the enterprise shall be used to pay equitization expenses and benefits to employees who are redundant upon equitization in accordance with State regulations and the decision of the authorized body. The remainder of the proceeds shall be dealt with in accordance with clause 1.3 of this article;

(b) Where the proceeds from equitization [retained] at the enterprise are insufficient to pay benefits to redundant employees, the shortfall shall be funded from:

- The Assistance Fund for Restructuring Enterprises at a group, State owned corporation or parent company (when a member company, subsidiary company or dependent accounting affiliate of such enterprise is equitized; and if still insufficient, then the shortfall shall be funded from the Assistance Fund for Restructure of Enterprises of the State Capital Investment Corporation;

- The reserve for retrenchment payouts of an independent State owned company or independent cost accounting member company (in the case of equitization of a section of the enterprise);

- The Assistance Fund for Restructure of Enterprises of the State Capital Investment Corporation in the case of equitization of independent State owned companies and limited liability companies in which the State holds one hundred 100% charter capital under ministries, ministerial equivalent bodies, Government bodies and people's committees of provinces and cities under central authority (in the case of equitization of the whole of a State corporation, group or parent company).

(c) The remaining sum of money earned from equitization of the State owned capital portion (including any difference between selling prices of shares) shall, after deduction of items stipulated in clause 1(a) of this article, be paid to:

- The Assistance Fund for Restructuring Enterprises at a group or State owned corporation, in the case of equitization of a member enterprise, subsidiary company or dependent unit of the group or corporation;

- The Assistance Fund for Restructuring Enterprises at a parent company in the case of equitization of a subsidiary company being a limited liability company in which the parent company holds one 100% charter capital and equitization of a dependent accounting affiliate of the parent company;

- The independent State owned company or independent cost accounting member enterprise in the case of equitization of a dependent accounting affiliate of such enterprise;

- The Assistance Fund for Restructure of Enterprises of the State Capital Investment Corporation in the case of equitization of the whole of an independent State owned company; the whole of a State corporation; the whole of a group or parent company which is organized and operates on the model of parent subsidiary company and member limited liability company in which the State holds 100% charter capital under a ministry, ministerial equivalent body, Government body, or people's committee of a province or city under central authority.

2. In the case of an additional issue of shares in order to increase charter capital:

(a) The proceeds from equitization to be retained at the enterprise shall be the value corresponding to the number of additionally issued shares at their par value; the capital surplus (the difference between proceeds from equitization and the total par value of additionally issued shares) shall be used to pay equitization expenses and benefits for redundant employees, and any shortfall shall be dealt with in accordance with the provisions of clause 1(b) of this article;

(b) The remaining sum of money (if any) shall be retained at the shareholding company in accordance with the ratio of additionally issued shares in the structure of charter capital. The remainder shall be dealt with in accordance with the provisions of clause 1(c) of this article. The Ministry of Finance shall provide guidelines for management and utilization of sums of money retained at shareholding companies.

3. In the case of combining the sale of part of the State owned capital with an additional issue of shares:

(a) The proceeds from equitization to be retained at the enterprise shall be the value corresponding to the number of additionally issued shares at their par value; the capital surplus shall be used to pay equitization expenses and benefits for redundant employees, and any shortfall shall be dealt with in accordance with the provisions of clause 1(b) of this article;

(b) The remainder shall be dealt with as follows:

- The value of State shares sold at the reduced par value shall be paid to the beneficiaries entitled in accordance with clause 1(c) of this article;

- The remainder (if any) shall be distributed in accordance with clause 2(b) of this article.

4. The proceeds from equitization to be used to pay benefits for redundant employees in the equitized enterprise shall be fixed as revenue of the Assistance Fund for Restructure of Enterprises.

5. The body making the equitization decision shall be responsible for reporting fully and promptly the management and utilization of proceeds from equitization to the State Capital Investment Corporation for preparation of a general report to the Ministry of Finance and the Prime Minister.

Article 46. Management and use of Assistance Fund for Restructuring Enterprises

1. The Assistance Fund for Restructuring Enterprises shall be established at the State Capital Investment Corporation in order to:

(a) Assist enterprises which are carrying out restructuring and conversion of ownership (including an enterprise carrying out a merger, consolidation, dissolution, bankruptcy, equitization, assignment, sale, conversion to a one member limited liability company or to an income- earning professional entity, and so forth) to pay benefits to redundant employees and to deal with financial issues in accordance with law;

(b) Supplement the charter capital of the State Capital Investment Corporation in accordance with a decision of the Prime Minister of the Government;

(c) Invest in important projects including infrastructure projects which recover their capital, in accordance with a decision of the Prime Minister of the Government.

2. The Assistance Fund for Restructuring Enterprises at a group, State owned corporation or parent company shall be used in order to:

(a) Assist member enterprises and sections of a subsidiary enterprise which are carrying out restructuring and conversion of ownership (including enterprises carrying out a merger, consolidation, dissolution, bankruptcy, equitization, assignment, sale or conversion into a one member limited liability company or income-earning professional entity and so forth) to pay benefits to redundant employees and to deal with financial issues in accordance with law;

(b) Supplement charter capital as approved by the authorized body;

(c) A group, State corporation or parent company shall be permitted to invest the remaining amount in development of the enterprise in accordance with a decision of the Prime Minister.

3. The Prime Minister of the Government shall make a decision:

On formulation and issuance of Regulations on management and use of the Assistance Fund for Restructuring Enterprises at the State Capital Investment Corporation; on harmonization of the Fund as between groups, State owned corporations including the State Capital Investment Corporation and parent companies; and on investment by the State in major projects on the basis of proposals from the Ministry of Finance.

4. The Ministry of Finance shall issue Regulations on management and use of the Assistance Fund for Restructuring Enterprises at a group, State owned corporation or parent company, and shall inspect and supervise management and use of proceeds from equitization in order to assist restructuring of enterprises and investment in development of enterprises in accordance with law.

Article 47. Charter of shareholding company

1. The charter of the shareholding company shall be drafted by the Steering Committee for Equitization and shall be publicized for investors before the share sale. The draft charter must not be contrary to the provisions of the Law on Enterprises and other relevant laws.

2. The initial general meeting of shareholders shall pass the charter of the shareholding company when it is approved by at least sixty-five (65) per cent of the number of votes of attending investors who contributed capital to purchase shares.

Article 48. General meeting of shareholders and initial business registration

1. Within a time-limit of one month from the date of completion of the share sale, the enterprise must hold the initial general meeting of shareholders in order to convert the enterprise into a shareholding company and conduct business registration in accordance with law.

The application file for business registration shall include the decision to convert into a shareholding company made by the body making the equitization decision and the charter of the shareholding company signed by the legal representative of the shareholding company.

2. Within a maximum time-limit of fifteen (15) working days from the date of receipt of the financial statements as at the time of official conversion into the shareholding company, the body authorized to make the decision valuing the enterprise shall co-ordinate with the financial body to inspect and deal with financial issues at the time of official conversion into the shareholding company in accordance with article 21 of this Decree; re-determine the value of the State capital portion, and revenue and expenditure arising during the equitization process; decide the adjustment of State capital in the enterprise; organize the handover between the enterprise and the shareholding company; and send the results on re-evaluation of the enterprise to the Ministry of Finance.

Article 49. Appointment of representative of State owned capital portion in an equitized enterprise

1. A group, State corporation or parent company shall be responsible to appoint a representative of the State owned capital portion in the equitized enterprise being a member entity or section of a subsidiary enterprise, and shall be responsible to exercise the rights and discharge the obligations of the representative of the owner of the State capital in accordance with law.

2. Ministries, ministerial equivalent bodies, Government bodies, and peoples committee of provinces and cities under central authority shall:

- Report the appointment of a representative of the owner to the Prime Minister in the case of equitization of the whole of a group or State corporation;

- Make a decision appointing a representative of the State owned capital portion in the shareholding company. In the case of equitization of enterprises in the category which transfer rights of the representative of the State owned capital portion to the State Capital Investment Corporation, then the ministry, ministerial equivalent body, Government body or people's committee of a province or city under central authority shall co-ordinate with the State Capital Investment Corporation to appoint a representative of the owner of the State owned capital portion in the enterprise.

3. A representative of the owner shall be responsible to co-ordinate with the Steering Committee for Equitization and the State Capital Investment Corporation to hold the general meeting of shareholders and to deal with relevant work before conversion of the enterprise into a shareholding company.

Chapter V

POLICIES APPLICABLE TO ENTERPRISES AND TO EMPLOYEES AFTER EQUITIZATION

Article 50. Incentives to which the enterprise is entitled after equitization:

1. Exemption from registration fees on transfer of assets under the management and use right of the equitized State owned enterprise to ownership of the shareholding company.

2. Exemption from registration fees for the issuance of a business registration certificate upon conversion from an enterprise with 100% State owned capital into a shareholding company.

3. In order to stabilize production and business activities, [the shareholding company] shall be entitled to re-sign lease contracts for land, residential housing and other buildings on similar conditions as previously applied to the enterprise, or shall be entitled to preferential treatment to acquire such housing and buildings at the market price as at the time of equitization.

4. Entitlement to land use rights in accordance with the law on land.

5. Entitlement to maintain and develop Welfare Funds in kind, such as cultural facilities, clubs, out- patient clinics, nursing homes and kindergartens in order to ensure the welfare of employees of the shareholding company. Such assets shall be under the ownership of the labour collective and managed by the shareholding company.

Article 51. Incentives to which employees of the enterprise undergoing equitization shall be entitled:

1. Employees named on the list of regular employees of the enterprise as at the time of the announcement of the value of the equitized enterprise shall be entitled to purchase up to a maximum of one hundred (100) shares for each year of actual employment in the State sector with the selling price stipulated in article 37.2 of this Decree.

2. Entitlement to receive distribution of any cash balance in the Reward and Welfare Funds (including the vale of assets used in production and business the investment in which was funded by the Reward and Welfare Funds) stipulated in articles 14 and 15 of this Decree, in order to purchase shares.

3. Employees who transfer to work in the shareholding company shall continue to participate in social insurance and shall be entitled to benefits in accordance with current regulations.

4.Employees who satisfy the conditions for entitlement to pension benefits as at the time of the announcement of the value of the equitized enterprise shall be entitled to receipt of a pension upon retirement and to benefits in accordance with current regulations.

5. Employees who lose their jobs or who cease work at the time of the announcement of the value of the equitized enterprise shall be paid retrenchment allowances and allowances on ceasing work in accordance with regulations.

Chapter VI

COMPLAINTS, DENUNCIATIONS AND DEALING WITH BREACHES

Article 52. Complaints and denunciations

1. Complaints and denunciations relating to the equitization process and their resolution shall be implemented in accordance with this Decree and the law on complaints and denunciations.

2. During the period of a complaint or denunciation, organizations and individuals must still implement the administrative decision issued by the competent State body and shall implement the new decision dealing with the complaint or denunciation when it takes effect.

3. Ministries, ministerial equivalent bodies, Government bodies and people's committees of provinces and cities under central authority shall be responsible to accept jurisdiction over complaints and denunciations in accordance with their respective authority, and shall provide written notice thereon to organizations and individuals for their information.

4. If a complaint remains unresolved after thirty (30) days from the expiry of the time-limit for resolution or from the date of receipt of the first decision on resolution of the complaint from a minister, head of a ministerial equivalent body or Government body or chairman of a people's committee and the complainant disagrees with [such decision], the complainant shall have the right to initiate legal action at a court in accordance with law.

Article 53. Dealing with breaches of law during the equitization process

1. Any organization or individual in breach of the provisions of this Decree or of other laws on equitization shall, depending on the nature and seriousness of the breach, be subject to disciplinary action, administrative penalty or prosecution for criminal liability; and must pay compensation for loss and damage caused (if any) in accordance with law.

2. Any person abusing his or her position and powers to obstruct the process of equitization; to harass or cause trouble for any organization or individual during equitization; failing to promptly resolve any request from an organization or individual in accordance with law; or failing to perform other official duties stipulated by law shall, depending on the nature and seriousness of the breach, be subject to disciplinary action or prosecution for criminal liability.

3. Penalties for administrative breaches shall be applied in accordance with the law on penalties for administrative breaches and other relevant laws such as penalties for administrative breaches in the accounting and securities sectors.

Chapter VII

ORGANIZATION OF IMPLEMENTATION

Article 54. Powers and responsibilities during organization of implementation of equitization

1. The Prime Minister shall:

(a) Approve the equitization master plan of the enterprises specified in article 2 of this Decree;

(b) Make decisions approving the equitization plans of groups, State corporations and a number of enterprises operating in special sectors such as insurance, banking, telecommunications, aviation, and rare mineral exploitation; and make decisions on what body will be the representative of the owner of the State owned capital portion in such enterprises;

(c) Authorize the board of management of a group or special State corporation for which the Prime Minister makes the decision on establishment (specified in the appendix to Decree 86/2006/ND-CP of the Government dated 21 August 2006 on amendment of and addition to a number of articles of Decree 132/2005/ND-CP of the Government dated 20 October 2005 on exercise of rights and performance of obligations of State owners applicable to State companies) to make decisions announcing the value of the enterprise, and approving equitization plans of member enterprises or sections of a subsidiary enterprise. After making such decision, the board of management of an economic group or special State corporation shall submit a report to the Ministry of Finance for examination and supervision in order to ensure that [such decision] complies with law.

2. Based on the plans for restructuring State owned enterprises approved by the Prime Minister of the Government, ministers, heads of ministerial equivalent bodies and Government bodies and chairmen of people's committees of provinces and cities under central authority shall:

(a) Establish Steering Committees for Equitization to assist ministers, heads of ministerial equivalent bodies and Government bodies and chairmen of people's committees of provinces and cities under central authority in implementing the work of equitization in accordance with this Decree;

(b) Guide, examine and supervise the process of equitization of entities within their management in accordance with this Decree;

(c) Make decisions announcing the value of an enterprise and submit equitization plans of enterprises stipulated in clause 1(b) of this article to the Prime Minister for his approval;

(d) Make decisions announcing the value of an enterprise and make decisions on equitization plans of enterprises within their management, ensuring the draft charter on organization and operation of the shareholding company is in accordance with the Law on Enterprises;

(dd) Take the initiative to transfer an enterprise from the list of enterprises to be equitized which in fact fails to satisfy all the conditions for equitization onto the list for conducting the form of sale, assignment, dissolution or bankruptcy;

(e) Agree with a company specializing in the purchase and sale of debts for such company to take over ownership of a State owned company suffering losses and no longer having State owned capital after such specialist company has dealt with the finances in accordance with law;

(g) Make decisions approving accounting finalization, on accounting finalization of equitization expenses, on accounting finalization of allowances paid to employees who became redundant, on accounting finalization of the proceeds earned from equitization of the enterprise, and on announcement of the actual value of the State owned capital portion as at the time when the initial business registration certificate was issued to the shareholding company;

(h) Resolve, in accordance with their authority, any problems, complaints or denunciations for equitized enterprises within a maximum period of fifteen (15) days from the date of receipt of a complete file, complaint or denunciation. Report promptly any matters which fall outside their authority to the Prime Minister for his consideration and decision;

(i) Report to the Prime Minister for his consideration and decision on a body to act as the representative of the owner of the State owned capital portion, upon equitization of a group or State corporation;

(k) With respect to equitized enterprises in the category of enterprises in which the rights of the representative of the owner of State owned capital are transferred to the State Capital Investment Corporation, the minister, head of the ministerial equivalent body or Government body or chairman of the people's committee shall be responsible to agree with the State Capital Investment Corporation on selection of a representative of the State owned capital portion contributed to the shareholding company and to carry out the transfer of the rights of the representative of such owner immediately after announcement of the actual value of the State owned capital portion as at the time when the initial business registration certificate was issued to the shareholding company.

3. The board of management of an economic group or State corporation referred to in clause 1(c) of this article shall be responsible to:

(a) Organize the implementation of equitization plans for enterprises belonging to a group or corporation in accordance with the proposal for restructuring State owned enterprises approved by the Prime Minister;

(b) Establish a Steering Committee for Equitization to assist the board of management of a group or State corporation in implementing the work of equitization in accordance with this Decree;

(c) Guide, examine and supervise the process of equitization of entities within their management in accordance with the items specified in this Decree;

(d) Direct member entities to deal with existing financial issues in accordance with Chapter II of this Decree, to hold valuations of enterprises, and to prepare equitization plans and submit them to the board of management of the group or State corporation for approval and commence work on plans which have been approved;

(dd) To deal with existing financial issues of the enterprises within their management, depending their authority;

(e) Make decisions announcing the value of an enterprise and make decisions approving equitization plans of member enterprises or sections of enterprises of a group or State corporation, ensuring the draft charter on organization and operation of the shareholding company is in accordance with the Law on Enterprises;

(g) Direct member entities to co-ordinate in carrying out accounting finalization, accounting finalization of equitization expenses, accounting finalization of allowances paid to employees who became redundant, accounting finalization of the proceeds earned from equitization of the enterprise, and in announcing the actual value of the State owned capital portion as at the time when the initial business registration certificate was issued to the shareholding company.

4. In addition to the rights and responsibilities stipulated in clause 3 of this article, the board of management of the State Capital Investment Corporation shall also be responsible to:

(a) Co-ordinate with ministries, branches and people's committees of provinces and cities under central authority to:

- Commence the work of equitization for enterprises in the category to be assigned;

- Appoint a representative of the State owned capital portion in an enterprise in the category to be assigned;

- Supervise and activate payment of proceeds from equitization to the State Capital Investment Corporation;

(b) Carry out investment in projects in accordance with a decision of the Prime Minister;

(c) Assist State agriculture and forestry enterprises undergoing restructuring to pay allowances to employees who become redundant, and to deal with financial issues;

(d) Prepare and submit periodical reports on the management and utilization of the Assistance Fund for Restructuring Enterprises to the Prime Minister and the Ministry of Finance.

5. Powers, responsibilities and composition of Steering Committees for Equitization of Enterprises:

(a) A Steering Committee for Equitization shall have the following powers and responsibilities:

- To assist the body making the equitization decision in directing and organizing the implementation of the equitization of one or several enterprises in accordance with this Decree;

- To be entitled to use the seal of the authorized body during performance of its duties;

- To establish an assisting group for implementation of equitization of an enterprise;

- To report to the body making the equitization decision to select the method of initial share sale;

- To direct the formulation of an equitization plan;

- To verify and submit the value of the enterprise to the authorized body for its decision announcing such value, and for its decision approving the equitization plan;

- To direct the enterprise to be equitized to co-ordinate with the intermediary financial institution to hold an auction to sell shares;

- To prepare and submit a report on results of equitization to the authorized body; equitization plan or decision adjusting the value of the enterprise after conversion into a shareholding company;

- To consider, select and propose [a nominee] and co-ordinate with the authorized body to appoint a representative of the State owned capital portion contributed to the equitized enterprise.

(b) The composition of the Steering Committee shall be determined by the minister, head of the ministerial equivalent body or Government body or the chairman of the people's committee of the province or city under central authority and by the board of management of a group or State corporation.

With respect to equitized enterprises in the category of enterprises in which the rights of the representative of the owner of State owned capital are transferred to the State Capital Investment Corporation, the members of the Steering Committee shall include an authorized representative of the State Capital Investment Corporation.

6. The trade union at the enterprise undergoing equitization shall co-ordinate with the Steering Committee for Equitization:

(a) To disseminate material to senior staff at the enterprise on implementing the State policy on equitization;

(b) To supervise the process of equitization at the enterprise;

(c) To appoint a representative of the trade union capital portion onto the board of management and board of inspectors of the equitized enterprise;

(d) To use legal Funds of the trade union at the enterprise to purchase shares.

Article 55. Regime on reporting, inspection and supervision

1. Ministers, heads of ministerial equivalent bodies and Government bodies, chairmen of people's committees of provinces and cities under central authority and boards of management of groups and State corporations shall be responsible to promptly report to the Steering Committee for Reform and Development of Enterprises and to the Ministry of Finance the following relevant items in the process of equitization: results of resolution of outstanding financial issues, results of valuation, decision on announcement of the value of the enterprise and adjustment of the value of the enterprise, equitization plan, result of the share sale, accounting finalization of equitization expenses and finalization of the handover from a State owned enterprise to a shareholding company.

The Ministry of Finance shall provide specific guidelines on the regime on reporting stipulated in clause 1 of this article.

2. The Ministry of Finance shall be responsible to check, supervise and activate ministries, ministerial equivalent bodies, Government bodies, people's committees of provinces and cities under central authority, economic groups and State corporations to carry out the work of equitization in accordance with the plan for restructuring State owned enterprises approved by the Prime Minister of the Government and the law, and submit periodic reports on current status and results of implementation of equitization of enterprises to the Prime Minister.

Chapter VIII

IMPLEMENTING PROVISIONS

Article 56. Implementing provisions

1. This Decree shall be of full force and effect after fifteen (15) days from the date of its publication in the Official Gazette and shall replace Decree 187/2004/ND-CP of the Government dated 16 November 2004 on conversion of State owned companies into shareholding companies. Any previous provisions on equitization which are inconsistent with this Decree shall no longer be effective.

2. Any enterprise for which there was a decision by the authorized body approving the equitization plan prior to the date of effectiveness of this Decree shall continue to implement such decision pursuant to the approved equitization plan and the provisions of this Decree.

3. Enterprises which conducted business registration to convert into a shareholding company prior to the date of effectiveness of this Decree shall continue to enjoy incentives in accordance with relevant laws.

4. Equitization of State commercial banks shall be carried out in accordance with the items stipulated in this Decree, regulations relating to the banking management sector and specific items in each Proposal for equitization approved by the Prime Minister of the Government.

Article 57. The Ministry of Finance; the Ministry of Labour, War Invalids and Social Affairs; the State Bank of Vietnam; the Ministry of Natural Resources and Environment, the Ministry of Planning and Investment and other relevant ministries and bodies shall be responsible to provide guidelines for implementation of this Decree.

Article 58. Ministers, heads of ministerial equivalent bodies, heads of Government bodies, chairmen of people's committees of provinces and cities under central authority, and boards of management of groups and State corporations for which the Prime Minister of the Government made the decision on establishment shall be responsible for implementation of this Decree.