Circular No. 73/2013/TT-BTC dated May 29, 2013 of the Ministry of Finance guiding in detail a number of articles on securities listing of Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities

THE MINISTRY OF FINANCE

Circular No. 73/2013/TT-BTC of May 29, 2013, guiding in detail a number of articles on securities listing of Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities

Pursuant to June 29, 2006 Law No. 70/2006/QH11 on Securities;

Pursuant to November 24, 2010 Law No. 62/2010/QH12 Amending and Supplementing a Number of Articles of the Law on Securities;

Pursuant to November 29, 2005 Law No. 60/2005/QH11 on Enterprises;

Pursuant to the Government’s Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding a number of articles of Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities;

Pursuant to the Government’s Decree No. 118/2008/ND-CP of November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the Chairperson of the State Securities Commission;

The Minister of Finance promulgates the Circular guiding in detail a number of articles on securities listing of Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities.

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of regulation

This Circular prescribes conditions for listing joint-stock companies formed after the consolidation or merger of businesses and dossiers for securities listing registration on the Ho Chi Minh City Stock Exchange and the Hanoi Stock Exchange.

Article 2. Interpretation of terms

1. Companies of the same type are companies of the same type of business, such as joint-stock companies or limited liability companies.

2. Consolidation of businesses means a case in which two or more companies of the same type (below referred to as consolidated companies) are consolidated into a new company (below referred to as consolidating company) by transferring all assets, rights, obligations and legitimate benefits to the consolidating company and concurrently terminating the existence of the consolidated companies under Article 152 of Law No. 60/2005/QH11 on Enterprises.

3. Merger of businesses means a case in which one or several businesses of the same type (below referred to as merged companies) are merged into another business (below referred to as merging company) by transferring all assets, rights, obligations and legitimate benefits to the merging company and concurrently terminating the existence of the merged companies under Article 153 of Law No. 60/2005/QH11 on Enterprises.

4. Words “company” and “business” referred to in this Circular have the same meaning.

Chapter II

CONDITIONS FOR LISTING SECURITIES JOINT-STOCK COMPANIES FORMED AFTER CONSOLIDATION OR MERGER OF BUSINESSES

Article 3. Conditions for listing on the Ho Chi Minh City Stock Exchange securities of joint-stock companies formed after consolidation or merger

1. Conditions for listing stocks

1.1. Conditions for listing stocks of a company formed after consolidation of businesses

a/ The company formed after the consolidation of two (2) or more companies that list on the Ho Chi Minh City Stock Exchange must satisfy the conditions prescribed at Points a, c, d, dd and e, Clause 1, Article 53 of Decree No. 58/2012/ND-CP;

b/ The company formed after the consolidation of two (2) or more companies of which at least one is listed on the Ho Chi Minh City Stock Exchange and at least one is not listed on the Ho Chi Minh City Stock Exchange, must satisfy the conditions prescribed at Points a, b, d, dd and e, Clause 1, Article 53 of Decree No. 58/2012/ND-CP; and at the same time the unlisted company must have operated for at least two (2) years as a joint-stock company by the time the company formed after the consolidation is granted a business registration certificate; have an after-tax return-on-equity (ROE) ratio of at least 5% for the last year and profitable business operation for two (2) consecutive years preceding the year of consolidation; have no payables overdue for over one (1) year and no accumulated loss up to the year of consolidation; and comply with regulations on accounting and financial statements;

c/ The company formed after the consolidation of two (2) or more companies which are not listed on the Ho Chi Minh City Stock Exchange must satisfy the conditions prescribed in Clause 1, Article 53 of Decree No. 58/2012/ND-CP.

1.2. Conditions for listing stocks of a company formed after merger of businesses

a/ In case the merging company and merged company are both listed on the Ho Chi Minh City Stock Exchange, the company formed after the merger shall register the listing change;

b/ In case the merging company is a listed company but the merged company is not listed on the Ho Chi Minh City Stock Exchange, the company formed after the merger may register an additional listing of converted stocks of the merged company when:

b1/ The merged company satisfies the following conditions: Having operated for at least two (2) years as a joint-stock company by the time the company formed after the merger is granted a business registration certificate; having an after-tax return-on-equity (ROE) ratio of at least 5% for the last year and profitable business operation for two (2) consecutive years preceding the year of merger; having no payables overdue for over one (1) year and no accumulated loss up to the year of merger; and complying with regulations on accounting and financial statements;

b2/ In case the merged company fails to satisfy the conditions prescribed at Point b1 above, it must have an ROE ratio of at least 5% in the audited consolidated annual or biannual financial statement (made right after the merger) of the company formed after the merger or a positive ROE ratio in the audited consolidated annual financial statement (made right after the merger) which is higher than the ROE ratio in the latest audited annual financial statement of the merging company;

b3/ In case the merged company and the ROE ratio of the company formed after the merger fail to satisfy the above conditions, the number of additionally issued stocks (equal to the capital of the merged company) may only be additionally listed after one (1) year from the time the company formed after the merger is granted a business registration certificate.

c/ In case the merging company is not listed on the Ho Chi Minh City Stock Exchange, the company formed after the merger must satisfy the conditions prescribed in Clause 1, Article 53 of Decree No. 58/2012/ND-CP.

2. Conditions for listing bonds after consolidation/merger of businesses

Companies formed after the consolidation/merger of businesses shall register for bond listing under Clause 2, Article 53 of Decree No. 58/2012/ND-CP.

Article 4. Conditions for listing on the Hanoi Stock Exchange securities of joint-stock companies formed after consolidation or merger

1. Conditions for listing stocks

1.1. Conditions for listing stocks of a company formed after consolidation of businesses

a/ The company formed after the consolidation of two (2) or more companies that list on the Hanoi Stock Exchange must satisfy the conditions prescribed at Points a, c, d and dd, Clause 1, Article 54 of Decree No. 58/2012/ND-CP;

b/ The company formed after the consolidation of two (2) or more companies of which at least one is listed on the Hanoi Stock Exchange and at the same time at least one is not listed on the Ho Chi Minh City Stock Exchange, must satisfy the conditions prescribed at Points a, b, d and dd, Clause 1, Article 54 of Decree No. 58/2012/ND-CP; and at the same time the unlisted company must have operated for at least one (1) year as a joint-stock company by the time the company formed after the consolidation is granted a business registration certificate; have an after-tax return-on-equity (ROE) ratio of at least 5% for the last year and profitable business operation for the year preceding the year of consolidation; have no payables overdue for over one (1) year and no accumulated loss up to the year of consolidation; and comply with regulations on accounting and financial statements;

c/ The company formed after the consolidation of two (2) or more companies which are not listed on the Hanoi Stock Exchange must satisfy the conditions prescribed in Clause 1, Article 54 of Decree No. 58/2012/ND-CP.

1.2. Conditions for listing stocks of a company formed after merger of businesses

a/ In case the merging company is listed on the Hanoi Stock Exchange and the merged company is listed on a stock exchange, the company formed after the merger shall register the listing change;

b/ In case the merging company is listed on the Hanoi Stock Exchange but the merged company is not listed on the Hanoi Stock Exchange, the company formed after the merger may register an additional listing of converted stocks of the merged company when:

b1/ The merged company satisfies the following conditions: Having operated for at least one (1) year as a joint-stock company by the time the company formed after the merger is granted a business registration certificate; having an after-tax return-on-equity (ROE) ratio of at least 5% for the year preceding the year of merger; having no payables overdue for over one (1) year and no accumulated loss up to the year of merger; and complying with regulations on accounting and financial statements;

b2/ In case the merged company fails to satisfy the conditions prescribed at Point b1 above, it must have an ROE ratio of at least 5% in the audited consolidated annual or biannual financial statement (made right after the merger) of the company formed after the merger or a positive ROE ratio in the audited consolidated annual financial statement (made right after the merger) which is higher than the ROE ratio in the latest audited annual financial statement of the merging company;

b3/ In case the merged company and the ROE ratio of the company formed after the merger fail to satisfy the above conditions, the number of additionally issued stocks (equal to the capital of the merged company) may only be additionally listed after one (1) year from the time the company formed after the merger is granted a business registration certificate.

c/ In case the merging company is not listed on the Hanoi Stock Exchange, the company formed after the merger must satisfy the conditions prescribed in Clause 1, Article 54 of Decree No. 58/2012/ND-CP.

2. Conditions for listing of bonds after consolidation/merger of businesses

Companies formed after the consolidation/merger of businesses shall register for bond listing under Clause 2, Article 54 of Decree No. 58/2012/ND-CP.

Chapter III

DOSSIERS AND PROCEDURES FOR REGISTRATION OF LISTING ON THE STOCK EXCHANGES

Article 5. Dossiers and procedures for registration of listing on the stock exchanges

1. Dossiers for registration of stock listing:

1.1. A dossier for registration of initial stock listing:

a/ A dossier for registration of stock listing as prescribed at Points b, dd, e, g, h, i and k, Clause 2, Article 57 of Decree No. 58/2012/ND-CP;

b/ Written registration for stock listing, made according to the form provided in Appendix No. 01 (a);

c/ Shareholder register, made within one (1) month before the time of submission of the listing registration dossier and enclosed with a list of major shareholders, internal shareholders and strategic shareholders (number, holding rates, period of transfer restriction (if any)) and a list of affiliated persons of major shareholders and internal shareholders;

d/ Prospectus, made according to Appendix No. 02.

1.2. A dossier for registration of listing of stocks of a company formed after consolidation:

a/ For a company formed after the consolidation of two (2) or more companies which are listed on the stock exchanges:

- A dossier for listing registration prescribed in Clause 1.1 of this Article, except Appendices VI and VII on auditor report and financial statements in the prospectus;

- Consolidation contract as prescribed in the Law on Enterprises;

- A competent state agency’s written approval of the consolidation of businesses (in case a competent state agency’s approval is required).

b/ For a company formed after the consolidation of two (2) or more companies of which at least one is listed and at least one is not listed on a stock exchange:

- A dossier for listing registration prescribed in Clause 1.1 of this Article, except Appendices VI and VII on auditor report and financial statements in the prospectus;

- The unlisted company must have an annual financial statement audited before the consolidation;

- Consolidation contract as prescribed in the Law on Enterprises;

- A competent state agency’s written approval of consolidation of businesses (in case a competent state agency’s approval is required).

c/ For a company formed after the consolidation of two (2) or more companies which are not listed on the stock exchanges, the dossier for listing registration complies with Clause 1.1 of this Article.

1.3. Dossiers for registration of listing of stocks of companies formed after merger:

a/ For a joint-stock company formed after merger as prescribed at Points a and b3, Clause 1.2, Article 3, and Points a and b3, Clause 1.2, Article 4 of this Circular:

- A dossier for change of listing registration as prescribed in Clause 2, Article 59 of Decree No. 58/2012/ND-CP;

- A competent state agency’s written approval of merger of businesses (in case a competent state agency’s approval is required).

b/ For a joint-stock company formed after merger as prescribed at Points b1 and b2, Clause 1.2, Article 3, and Points b1 and b2, Clause 1.2, Article 4 of this Circular:

- A dossier for listing registration prescribed in Clause 1.1 of this Article;

- The merging company and merged company must have annual financial statements audited before the merger;

- Merger contract as prescribed in the Law on Enterprises;

- Audited consolidated annual financial statement (made right after the merger) of the company formed after the merger;

- A competent state agency’s written approval of the merger of businesses (in case a competent state agency’s approval is required).

c/ For a joint-stock company formed after merger as prescribed at Point c, Clause 1.2, Article 3 and Point c, Clause 1.2, Article 4 of this Circular: A dossier for listing registration as prescribed in Clause 1.1 of this Article.

2. A dossier for bond listing registration comprises:

a/ A dossier for bond listing registration as prescribed at Points b, c, dd, e, g, h and i, Clause 3, Article 57 of Decree No. 58/2012/ND-CP;

b/ Written listing registration, made according to the form provided in Appendix No. 01 (b);

c/ Prospectus, made according to the form provided in Appendix No. 02.

3. A dossier for registration of listing of public fund certificates or stocks of a public securities investment company comprises:

a/ A dossier for registration of listing of public fund certificates or stocks of a public securities investment company as prescribed at Points b, c, dd, e, g and h, Clause 4, Article 57 of Decree No. 58/2012/ND-CP;

b/ Written listing registration, made according to the form provided in Appendix No. 01 (c) or 01 (d);

c/ Prospectus, made according to the form provided in Appendix No. 03 or 04.

4. Joint-stock companies formed after consolidation as prescribed at Points a and b, Clause 1.1, Article 3; Points a and b, Clause 1.1, Article 4 shall carry out the procedures for listing registration within three (3) months after they are granted business registration certificates.

5. The stock exchanges shall specify the procedures for registration of listing of securities of companies formed after consolidation or merger.

Chapter IV

IMPLEMENTATION PROVISIONS 

Article 6. Implementation provisions

This Circular takes effect on July 15, 2013.

The prospectus form provided in Appendix No. 02 to this Circular replaces the prospectus form provided in Appendix No. 03 to the Minister of Finance’s Decision No. 13/2007/QD-BTC of March 13, 2007, setting the form of prospectus in dossiers for registration of securities public offering; and the prospectus forms provided in Appendices No. 03 and 04 to this Circular replace the prospectus forms provided in the section on listing in Appendices 04 and 05 to the said Decision.

Article 7. Organization of implementation

The stock exchanges, the securities depository center, companies making listing registration and related organizations and individuals shall implement this Circular.-

For the Minister of Finance
Deputy Minister
TRAN XUAN HA

* All appendices to this Circular are not translated.