Thông tư 34/2019/TT-BTC sửa đổi Thông tư 40/2018 hướng dẫn bán cổ phần

CIRCULAR

On amending and supplementing a number of Articles of the Circular No. 40/2018/TT-BTC dated May 04, 2018 of the Ministry of Finance on providing guidelines for initial offering of shares and management and use of proceeds from equitization of state-owned enterprises and single-member limited liability companies with 100% charter capital invested by state-owned enterprises

Pursuant to the Law on Enterprise No.68/2014/QH13 dated November 26, 2014;

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

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

Pursuant to the Decree No.  58/2012/ND-CP dated July 20, 2012 of the Government stipulating in detail and guiding the implementation of a number of articles of the securities Law and the law amending and supplementing a number of articles of securities Law;

Pursuant to the Decree No. 60/2015/ND-CP Decree No. 60/2015/ND-CP dated June 26, 2015 of the Government amending and supplementing a number of articles of the Decree No. 58/2012/ND-CP dated July 20, 2012 of the Government stipulating in detail and guiding the implementation of a number of articles of the securities Law and the law amending and supplementing a number of articles of securities Law;

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

At the request of the Head of Finance and Enterprise Department,

The Minister of Finance issues the CircularOn amending and supplementing a number of Articles of the Circular No. 40/2018/TT-BTC dated May 04, 2018 of the Ministry of Finance on providing guidelines for initial offering of shares and management and use of proceeds from equitization of state-owned enterprises and single-member limited liability companies with 100% charter capital invested by state-owned enterprises (hereafter called Circular No. 40/2018/TT-BTC).

Article 1. To amend and supplement a number of Articles of the Circular No. 40/2018/TT-BTC as follows:

1. To supplement the Article 9a as follows:

“Article 9a. Principles of charter capital adjustment

1. Equitizationis the state-owned enterprise

In the case that the equitization shall be implemented in the form of combination between selling part of state capital and issuing shares, the charter capital shall have adjustment as follows:

a) The number of shares sold successfully is defined as the additional shares under the equitization approved by the owner’s representative. In the case that the total shares sold successfully under the forms prescribed in this Circular (including the shares sold to the strategic investment) is bigger than the additional shares under equitization form, the increasing difference is defined as the partly shares of state capital.

b) The partly shares of state capital is also defined with the preferential shares for objectives prescribed at point a, point c, Clause 1, Article 42 of the Decree No. 126/2017/ND-CP.

2. Equitizationis 100% charter capital invested by state-owned enterprises

The charter capital adjustment in 100% charter capital invested by state-owned enterprises is implemented in accordance with the principles prescribed in Clause 1 of this Article when the equitization is under the form of selling part of state capital and issuing additional shares or selling the whole of state capital and issuing additional shares.

2. To supplement Clause 3 to the Article 16 as follows:

“3. Within 30 days after July 29, 2019, therepresentative authorities  shall be responsible for approving the estimation of  the Business Arrangement Support Fund at December 31, 2017 in accordance with the regulations of this Circular. Within 05 working days after receiving the decisions of the representative authorities on approving the estimation of the Business Arrangement Support Fund on December 31, 2017, the parent company  shall be responsible for additional difference of payable amount prescribed at point 2, Article 15 of this Circular (if any) on the Business Arrangement Support Fund. After this term, the parent company must pay the payment of late interest in accordance with the Regulations on management and usage of the Business Arrangement Support Fund.

In the case that the payable amount for the Business Arrangement Support Fund in accordance with the final account of the representative authorities is lower than of self-decided amount by enterprise in accordance with point 02, Article 15 of this Circular, enterprises shall have documents to the Ministry of Finance  for withdrawing all the spare cash. Pursuant to the request of enterprises and other dossiers and document prescribed at Regulations on managing and using the Business Arrangement Support Fund, the Ministry of Finance decides to disburse the Business Arrangement Support Fund to refund the overpaid amount within 10 working days.”

3. To supplement Article 20a as follows:

“Article 20a.Responsibilities of Member Council and Presidents of state enterprises

1. To approve the equitization options of enterprise type II for selling shares and managing, using the amount from equitization prescribed at this Circular, exempt for the units prescribed at point b, clause 1, Article 45 of the Decree No. 126/2017/ND-CP.

2. To investigate and control the Steering Committee for Equitization and Enterprise type II with the sale of equitization in accordance with the approved project, and management and usage of the amount from equitization, exempt for the units prescribed at point b, clause 1, Article 45 of the Decree No. 126/2017/ND-CP.

3. To command and urge the enterprise type II of equitization to pay the amount from equitization for theBusiness Arrangement Support Fund in accordance with this Circular’s regulations, exempt for the units prescribed at point b, clause 1, Article 45 of the Decree No. 126/2017/ND-CP.

4. Decision to approve the equitization estimation, support funds for redundancy labor and the amount from enterprise equitization type II,  exempt for the units prescribed at point b, clause 1, Article 45 of the Decree No. 126/2017/ND-CP, and report to the Ministry of Finance (the Department of Finance and Enterprise).

5. To urge the equitization enterprise type II to submit the backup balance for the warranty of products, goods and building construction in accordance with the regulations at clause 6, Article 18 of this Circular, exempt for the units prescribed at point b, clause 1, Article 45 of the Decree No. 126/2017/ND-CP.

Article 2. Implementation effect

1. This Circular takes effect on July 29, 2019.

2. Any difficulties or proposals arising in the course of implementation shall submit to the Ministry of Finance for consideration and implementation.

For the Minister

The Deputy Minister

Huynh Quang Hai