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

DECREE

Amending and supplementing a number of articles of Decree No. 58/2012/ND-CP of July 20, 2012,
detailing and guiding the implementation of a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of
the Law on Securities[1]

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 26, 2014 Law on Enterprises;

Pursuant to the November 26, 2014 Law on Investment;

Pursuant to the June 29, 2006 Law on Securities; and the November 24, 2010 Law Amending and Supplementing a Number of Articles of the Law on Securities;

At the proposal of the Minister of Finance,

The Government issues the Decree to amend and supplement a number of articles of Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding the implementation of a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities.

Article 1. To amend and supplement a number of articles of Decree No. 58/2012/ND-CP of July 20, 2012, detailing and guiding the implementation of a number of articles of the Law on Securities and the Law Amending and Supplementing a Number of Articles of the Law on Securities, as follows:

1. To amend Clauses 2 and 13 of, and add Clauses 20, 21, 22, 23 and 24 to, Article 2 as follows:

“2. Offering of stocks for swap means the additional offering or issuance of stocks and use of such stocks for exchange for stocks of, or capital contribution portions in, other enterprises, or for debts owed by the issuer to creditors.

13. Foreign holding rate means the total percentage of voting shares or capital contribution portions which all foreign investors and economic institutions of which at least 51 percent of charter capital is held by foreign investors may hold in a public company, securities trading institution or securities investment fund.

20. Upcom trading system means a place where stocks of unlisted public companies and shares of equitized state enterprises are traded in the form of public offering.

21. Foreign investors include:

a/ Individuals with foreign citizenship;

b/ Institutions established under foreign laws and conducting investment and business in Vietnam.

22. Securities trading institutions include securities companies and fund management companies.

23. Covered warrant means a type of covered securities issued by a securities company, allowing the holder to buy (call warrant) or to sell (put warrant) an underlying instrument to the issuer at a specified price, on or before a predetermined date, or to receive the difference between the exercise price and the price of the underlying instrument at the time of exercise.

24. Creditor means a lender or a party having the right to request an institution or individual to perform the obligation to pay a debt.”

2. To add the following Article 2a below Article 2:

“Article 2a. Foreign holding rate on the Vietnamese securities market

1. Foreign holding rate in public companies is as follows:

a/ In case a treaty to which Vietnam is a contracting party prescribes a foreign holding rate, such treaty shall apply;

b/ In case of a public company operating in an investment field or a business line for which the investment law or a relevant law prescribes a foreign holding rate, such law shall apply;

For a public company operating in an investment field or a business line subject to conditions applicable to foreign investors but for which no specific foreign holding rate is prescribed, the maximum foreign holding rate is 49 percent.

c/ In case of a public company operating in various business lines subject to different prescribed foreign holding rates, the foreign holding rate in such company must not exceed the lowest rate prescribed for a certain business line in which such company is operating, unless otherwise prescribed by a treaty;

d/ For a public company not specified at Points a, b and c of this Clause, the foreign holding rate is unlimited, unless otherwise prescribed by the charter of such company.

2. For state enterprises equitized in the form of public offering of securities, the foreign holding rate must comply with the law on equitization. In case the law on equitization prescribes no foreign holding rate, the provisions of Clause 1 of this Article shall apply.

3. Investment in bonds by foreign investors is as follows:

a/ Foreign investors may unlimitedly invest in government bonds, government-guaranteed bonds, municipal bonds and corporate bonds, unless otherwise prescribed by relevant laws or issuers;

b/ In case of issuance of convertible bonds, issuers shall ensure that the foreign holding rate complies with Clause 1 and 2 of this Article when such bonds are converted into stocks or when stocks are bought.

4. Foreign investors may unlimitedly invest in securities investment fund certificates, stocks of securities investment companies, non-voting stocks of public companies, derivatives and depository certificates, unless otherwise prescribed by charters of issuers. Except for open-ended funds and securities investment funds in which the foreign holding rate is 51 percent or more, foreign investors shall comply with investment conditions and procedures prescribed for foreign investors when contributing capital or buying securities or capital contribution portions of economic institutions.

5. Public companies and listed companies shall report to the State Securities Commission and disclose information on foreign holding rates on their websites and websites of the Stock Exchange and Vietnam Securities Depository.”

3. To amend and supplement Article 4 as follows:

“Article 4. Conditions on private placement of stocks of public companies

1. Conditions on private placement of stocks of a public company are as follows:

a/ There is a decision of the Shareholders’ General Meeting adopting the plan on private placement and use of proceeds from the placement. The plan must clearly state the purpose, investors to whom stocks are privately placed or criteria for selection of investors for private placement, number of investors and projected scale of private placement;

In the following cases, the plan must clearly identify investors for private placement to be approved by the Shareholders’ General Meeting and may change an investor only after obtaining approval of the Shareholders’ General Meeting:

- Placement of stocks to an institution or individual or a group of institutions or individuals and affiliated persons of such institution(s) or individual(s), making their holding rate exceed the holding rate prescribed in Clause 11, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Securities;

- Placement to an institution or individual or a group of institutions or individuals and affiliated persons of such institution(s) or individual(s) of stocks equal to 10 percent or more of the charter capital of the issuer in an offering or in offerings within the last 12 months.

b/ The condition of duration of transfer restriction and interval between two consecutive offerings prescribed in Clause 6, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Securities is satisfied;

c/ Other conditions prescribed by relevant laws in case the issuer is an enterprise conducting a conditional investment field or business line are satisfied;

d/ The issuer is not the parent company of an institution to which stocks are privately placed or these institutions are not subsidiary companies of the same parent company.

2. Conditions on private placement of stocks for swap with debts of a public company are as follows:

a/ There is a decision of the Shareholders’ General Meeting adopting the plan on private placement. The plan must clearly state the purpose, amount of stocks projected to be privately placed, list of creditors, value of debts to be swapped and amount of stocks projected for swap for each creditor, determination method and swap ratio. Determination method and swap ratio are subject to opinion of an accredited audit firm or a securities company with the function of price appraisal which is not an affiliated person (below referred to as independent price appraiser). In case opinions are divergent on the projected swap ratio and the reasonable swap ratio determined by the independent price appraiser, the Board of Directors shall make a written explanation for consideration and decision by the Shareholders’ General Meeting;

b/ Debts permitted to be swapped must be those presented in the latest financial statement which has been audited or examined by auditors and approved by the Shareholders’ General Meeting;

c/ Other conditions prescribed by relevant laws are satisfied in case the issuer or creditor is an enterprise conducting a conditional investment field or business line;

d/ The condition prescribed at Point b, Clause 1 of this Article is satisfied;

dd/ The issuer is not the parent company of the creditor; or the issuer and creditor are not subsidiary companies of the same parent company.

3. Conditions on private placement of stocks for swap with stocks of a non-public joint-stock company or private placement to one shareholder or a number of specified shareholders for swap with stocks of another public company or private placement of stocks for swap with capital contribution portions in a limited liability company are as follows:  

a/ There is a decision of the Shareholders’ General Meeting adopting the plan on private placement. The plan must clearly state the purpose, amount of stocks projected to be privately placed, list of investors, amount of stocks projected to be issued for swap and amount of stocks or capital contribution portions to be received in swap from each investor, determination method and swap ratio. Determination method and swap ratio are subject to opinion of an independent price appraiser. In case opinions are divergent on the projected swap ratio and the reasonable swap ratio determined by the independent price appraiser, the Board of Directors shall make a written explanation for consideration and decision by the Shareholders’ General Meeting;

In case of swap of stocks of one shareholder or a number of specified shareholders of another public company, the placement shall be approved by the Shareholders’ General Meeting of such company in case the holding rate of the issuer in the public company having stocks for swap exceeds the public offering rate prescribed in Clause 11, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Securities.

b/ Stocks or capital contribution portions for swap are not subject to the transfer restriction at the time of swap under the articles of incorporation of the joint-stock company or limited liability company or relevant laws;

c/ The conditions prescribed by relevant laws are satisfied in case the issuer or the company having shares or capital contribution portions for swap is an enterprise conducting a conditional investment field or business line, and the law-prescribed conditions on economic concentration are satisfied in case swap is for consolidation or merger;

d/ The condition prescribed at Point b, Clause 1 of this Article is satisfied;

dd/ The financial statement of the company having shares or capital contribution portions for swap has been audited by an accredited audit firm and the auditor opinion is full acceptance without any exception;

e/ The issuer is not the parent company of the company having shares or capital contribution portions for swap; or both of them are not subsidiary companies of the same parent company.

4. Securities trading institutions that conduct private placement or conduct private placement for swap of debts must satisfy the conditions prescribed in Clauses 1 and 2 of this Article. Securities trading institutions may offer stocks for swap with stocks or capital contribution portions for the purpose of consolidation or merger with other securities trading institutions engaged in the same business line or conduct private placements for transformation into joint-stock companies under the guidance of the Ministry of Finance.”

4. To amend and supplement Article 5 as follows:

“Article 5. Dossiers for private placement of stocks of public companies

1. A dossier for private placement of stocks of a public company must comprise:

a/ The original written registration for private placement of stocks, made according to form No. 01 provided in the Appendix to this Decree;

b/ The original minutes or an excerpt copy of the minutes of the Shareholders’ General Meeting; the original decisions of the Shareholders’ General Meeting and the Board of Directors adopting the plan on placement and use of proceeds from the placement, enclosed with the list of investors to whom stocks are to be placed (if any) and amount of stocks projected to be placed to each investor;

c/ Documents providing information on the placement to investors (if any);

d/ Copies of documents of competent agencies or equivalent documents proving the satisfaction of the conditions prescribed at Point c, Clause 1, Article 4 of this Decree by the issuer;

dd/ The original written commitments of the issuer and investors eligible for placement on the satisfaction of the conditions prescribed at Point d, Clause 1, Article 4 of this Decree.

2. A dossier for private placement of stocks for swap of debts must comprise:

a/ The documents specified at Points a, b and c, Clause 1 of this Article;

b/ The issuer’s original latest annual financial statement audited by an accredit audit firm and original latest biannual financial statement examined by auditors. In case of debts not yet presented in the financial statement, there must be a document of the firm auditing the financial statement certifying the list of creditors and value of debts for approval by the Shareholders’ General Meeting;

c/ Copies of documents of competent agencies or other valid documents proving the satisfaction of the condition prescribed at Point c, Clause 2, Article 4 of this Decree by the issuer and creditors, except where they are securities trading institutions;

d/ The original written record of opinions of the independent price appraiser and the written explanation (if any) of the Board of Directors about the determination method and swap ratio;

dd/ The original written commitments of the issuer and creditors on the satisfaction of the condition prescribed at Point dd, Clause 2, Article 4 of this Decree.

3. A dossier for private placement of stocks for swap with shares of a joint-stock company or capital contribution portions of a limited liability company must comprise:

a/ The documents specified at Points a, b and c, Clause 1 of this Article;

b/ The original written commitment of the holder of shares or capital contribution portions for swap or written certification by the at-law representative of the company having shares or capital contribution portions for swap that such shares or capital contribution portions are not subject to any transfer restriction;

In case the swap of stocks of one shareholder or a number of specified shareholders of another public company makes the holding rate of the issuer in such public company exceed the public offering rate prescribed in Clause 11, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Securities, there must be also a decision of the Shareholders’ General Meeting of the company having stocks for swap approving the swap. In case of economic concentration activities subject to opinion of the competition management agency, a document on the opinion of such agency or opinion of a competent authority defined by the law on competition is required.

c/ The audited financial statement of the company having shares or capital contribution portions for swap;

d/ Copies of documents of competent agencies or valid documents proving the satisfaction of the condition prescribed at Point c, Clause 3, Article 4 of this Decree by the issuer and company having shares or capital contribution portions for swap;

dd/ The original written commitments of the company having shares or capital contribution portions for swap on the satisfaction of the condition prescribed at Point e, Clause 3, Article 4 of this Decree.

4. A dossier for private placement of stocks of a securities trading institution being a joint-stock company must comprise:

a/ The documents specified in Clause 1 or 2 of this Article, depending on the purpose of placement;

b/ The original latest audited financial statement and valid documents proving that the investors have sufficient lawful capital for supplementing the charter capital.”

5. To amend and supplement Article 6 as follows:

“Article 6. Procedures for private placement of stocks of public companies

1. The issuer shall send its dossier for registration of private placement of stocks to the State Securities Commission.

2. For an incomplete and invalid dossier for registration of private placement of stocks, within 5 days after receiving it, the State Securities Commission shall notify in writing its opinions requesting the issuer to supplement and modify the dossier. The time limit after the receipt of a complete and valid dossier shall be counted from the time the issuer completes the supplementation and modification of its dossier.

3. Within 15 days after receiving a complete and valid registration dossier, the State Securities Commission shall notify such to the issuer and announce on its website the receipt of the complete dossier for registration of private placement of stocks of the issuer.

4. The issuer shall open a frozen account and receive raised capital under Clause 3, Article 21 of the Law on Securities, except the case of placement for swap of debts or for swap with shares or capital contribution portions in another company.

5. Within 10 days after completing the placement, the issuer shall send a report on the placement results, made according to form No. 2 provided in the Appendix to this Decree, to the State Securities Commission, enclosed with the certification of the commercial bank where the frozen account is opened of the proceeds from the placement. For the cases specified in Clauses 2 and 3, Article 4 of this Decree, the report on placement results shall be enclosed with written certifications of parties receiving swapped shares.”

6. To amend Clauses 2, 3 and 4 of, and add Clause 5 to, Article 7 as follows:

“2. To modify, supplement or explain their dossiers as requested in writing by the State Securities Commission.

3. To organize the placement under the registered plan and complete the placement within 90 days after the State Securities Commission notifies the receipt of the complete dossier for registration of private placement of stocks.

4. The Board of Directors may change contents of the plan on use of proceeds related to criteria for identification or organization of receipt of investment capital or capital use purposes when authorized by the Shareholders’ General Meeting as prescribed in the company charter. Within 10 days after the Board of Directors decides to change such contents, the issuer shall send to the State Securities Commission a report, made according to Form No. 03 provided in the Appendix to this Decree, and at the same time publicize the changed contents on its website and perform the obligation to disclose information in accordance with the law on securities and securities market applicable to public companies. Any change shall be reported to the upcoming Shareholders’ General Meeting.

5. The issuer shall disclose the report on capital use certified by auditors at the Shareholders’ General Meeting or explain in detail the use of the proceeds from the placement in the audited annual financial statement. This provision is not applicable to the case where a public company offers stocks for swap of debts, shares or capital contribution portions.”

7. To amend and supplement Article 9 as follows:

“Article 9. General provisions on public offering of securities

1. Institutions and individuals may conduct public offering of securities if they:

a/ are enterprises satisfying the conditions for public offering of securities prescribed in Article 12 of the Law on Securities and Clause 7, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Securities, except the case of offering of securities of state enterprises transformed into joint-stock companies in accordance with the law on equitization and the law on management and use of capital invested by the State in enterprises;

b/ conduct public offering of securities to establish enterprises under Articles 12, 13, 14 and 79 of this Decree.

2. The registration of public offering of securities shall be made by issuers, unless:

a/ Agencies representing the state owners, state groups, corporations or enterprises sell state-held capital portions to the public in accordance with the law on management and use of capital invested by the State in enterprises and law on equitization;

b/ Major shareholders offer their holdings to the public.

3. In case the issuer offers part of its total shares registered for public offering to one or a number of specified investors (except the case of offering to existing shareholders in proportion to their holdings in the company or to employees), it shall ensure that the offering conditions and condition on rights and obligations of shareholders are not more favorable than the conditions on offering to existing shareholders, unless otherwise approved by the Shareholders’ General Meeting. The Shareholders’ General Meeting and Board of Directors shall establish criteria for and make the list of these investors under Clause 1, Article 4 of this Decree. The aforesaid offered stocks are subject to transfer restriction within one year from the date the offering is completed.

4. Proceeds from the offering shall be transferred into a frozen account under Clause 3, Article 21 of the Law on Securities. The issuer may not use in any form money on the frozen account until the offering is completed and reported to the State Securities Commission. In case the issuer is a commercial bank, it shall choose another commercial bank for freezing the proceeds from the offering. The bank where the frozen account is opened must not be an affiliated person of the issuer.

5. Within 10 days after completing the offering, the issuer shall report to the State Securities Commission and disclose the offering result enclosed with the certification of the commercial bank where the frozen account is opened of the proceeds from the offering.

6. Within 3 working days after receiving the report on the offering result, the State Securities Commission shall send a notice certifying such result to the issuer, Stock Exchange and Vietnam Securities Depository.

7. After receiving the notice certifying the offering result from the State Securities Commission, the issuer shall be requested to stop freezing the proceeds from the offering and complete procedures for securities registration, depository, trading registration and listing under Clause 1, Article 56 of this Decree.

The Vietnam Securities Depository shall coordinate with the Stock Exchange in putting securities registered for centralized depository in trading on the Upcom trading system. The issuer shall disclose information about the registration for trading on the Upcom trading system within 24 hours after receiving the Stock Exchange’s notice of completion of the procedures for trading registration. 

8. Reports on capital use

a/ The Board of Directors may change the capital use purpose only when being authorized by the Shareholders’ General Meeting to do so. In case the Board of Directors issues a decision on the capital use purpose as authorized by the Shareholders’ General Meeting, within 10 days after such decision is issued, the issuer shall send to the State Securities Commission a report, made according to Form No. 04 provided in the Appendix to this Decree, enclosed with the decision of the Board of Directors and relevant documents of the competent authority on the change (if any), and at the same time disclose information on the change. The change of the capital use purpose shall be reported to the upcoming Shareholders’ General Meeting;

b/ In case of raising capital for implementation of an investment project, once every six months from the date of completion of the offering until the completion of the project, or until the proceeds are fully disbursed, the issuer shall send to the State Securities Commission a report, made according to Form No. 05 provided in the Appendix to this Decree, and disclose information on the progress of use of the proceeds from the offering. The issuer shall disclose the report on capital use certified by auditors at the Shareholders’ General Meeting or explain in detail the use of the proceeds from the offering in the audited annual financial statement.”

8. To amend Clause 2, Article 18 as follows:

“2. Satisfying the following conditions:

a/ Having profitable business results up to the time of offering registration;

b/ Having operated for at least one year since the date of consolidation or merger, except where:

- Institutions joining consolidation or merger have profitable business results in the year preceding the year of consolidation or merger and have no accumulated loss up to the time of consolidation or merger; or

- It is the institution formed after consolidation or merger under the restructuring plan approved by the Prime Minister.”

9. To amend Point a, Clause 2, Article 23 as follows:

a/ Having an issuance and swap plan adopted by the Shareholders’ General Meeting; satisfying the conditions and holding rate applicable to foreign investors prescribed by the investment law and relevant laws (in case of participation of foreign investors);”

10. To add the following Article 28a below Article 28:

“Article 28a. Overseas offering and listing of fund certificates

A fund management company may offer and raise capital overseas to establish overseas investment funds, and list certificates of funds established in Vietnam overseas. Activities of raising overseas capital, offering and listing fund certificates overseas shall be reported to the State Securities Commission and must comply with the law on foreign exchange management and relevant regulations. The listing of certificates of a fund established in Vietnam overseas shall be approved by the Investors’ General Meeting of the fund and reported to the State Securities Commission.”

11. To amend Point b, Clause 1; add Point g to Clause 1; and amend Clause 2 of Article 37 as follows:

“b/ Having a sufficient capital amount for stock redemption from the following sources: share capital surplus, undistributed after-tax profits or other funds of equity capital allowed to be used for charter capital supplementation in accordance with law;

g/ Ensuring that the total amount of stocks redeemed, in all redemptions, for use as treasury stocks must not exceed 30 percent of the amount of outstanding common stocks.”

“2. The redemption of stocks is not subject to the provisions of Clause 1 of this Article in the following cases:

a/ Redemption of stocks at the request of shareholders in accordance with Article 129 of the Law on Enterprises;

b/ Redemption of stocks of officials and employees under the regulation of issuance of stocks to employees; redemption of odd shares under a plan on issuance of stocks for payment of dividends or issuance of stocks from equity capital in accordance with the guidance of the Ministry of Finance;

c/ The securities company redeems its own stocks for correction of trading errors under regulations of the State Securities Commission.”

12. To amend Point d, Clause 1, and Clause 2 of Article 38 as follows:

“d/ It has redeemed its stocks within 6 months from the date of reporting on results of treasury stock trading, except the cases specified in Clause 2, Article 37 of this Decree; or within 6 months from date of completion of the offering or issuance of stocks for capital increase.”

“2. Unless a company redeems stocks in proportion to the holding rate of each shareholder in the company, or publicly offers its issued stocks, or redeems shares under a court decision or judgment or arbitral award, such company may not purchase shares from the following shareholders for use as treasury stocks:

a/ Its manager and affiliated persons as defined by the Law on Securities;

b/ Holders of shares subject to transfer restriction as prescribed by law and the company charter;

c/ Major shareholders as defined by the Law on Securities, except where the issuer has registered trading or listing on the Stock Exchange and conducted transactions in the form of order matching.”

13. To amend Clauses 1 and 4 of Article 39 as follows:

“1. A public company may only sell its treasury stocks 6 months after the completion of the latest redemption, unless treasury stocks are sold or used as bonus stocks for its employees or redeemed stocks are traded in the cases specified in Clause 2, Article 37 of this Decree. A public company may destroy its treasury stocks to decrease its charter capital; or sell or use treasury stocks as bonus stocks to increase its charter capital; but may not use them as security assets or capital contribution or for swap.”

“4. In case of sale of treasury stocks in the form of public offering or private placement of securities, the public company shall comply with regulations on public offering or private placement of securities.”

14. To add the following Clause 3 to Article 41:

“3. In case of participating in bidding for publicly offered securities, organizations and individuals that wish to buy an amount equal to or exceeding the stock holding rates prescribed in Clause 11, Article 1 of the Law Amending and Supplementing a Number of Articles of the Law on Securities, are not required to comply with the regulations on public bidding.”

15. To amend Points a, b and c, Clause 3, Article 53 as follows:

“a/ Being a closed-end fund, real estate investment fund, portfolio swap fund or public securities investment company;

b/ The members of the Representative Board of the securities investment fund or the members of the Board of Directors, Control Board, director (general director), deputy directors (deputy general directors), chief accountant, major shareholders who are affiliated persons of the members of the Board of Directors, Control Board, director (general director), deputy directors (deputy general directors) or chief accountant (if any) of the securities investment company commit to holding 100% of the fund certificates or stocks owned by them for 6 months from the date of listing and at least 50% of these fund certificates or stocks for the subsequent 6 months;

In case a real estate investment fund receives capital contributions in real estate valued at 30% or more of the issued fund certificates, investors making capital contributions in real estate shall hold at least 30% of outstanding fund certificates for three (3) years from the date of contribution of real estate to the fund and hold at least 15% of outstanding fund certificates for subsequent three (3) years. In case investors making capital contributions in real estate hold under 30% of issued fund certificates, they shall hold 100% of fund certificates owned by them for three (3) years from the date of contribution of real estate to the fund and hold at least 15% of outstanding fund certificates for subsequent three (3) years. In case investors making capital contributions in real estate hold under 15% of issued fund certificates, they shall hold 100% of fund certificates owned by them for six (6) years from the date of contribution of real estate to the fund.

c/ Having at least 100 persons who own fund certificates of the public fund or at least 100 shareholders holding stocks of the public securities investment company, excluding professional investors. This provision is not applicable to portfolio swap funds;”

16. To amend and supplement Article 55 as follows:

“Article 55. Listing of stocks of companies formed after consolidation or merger, institutions issuing stocks for swap with shares or capital contribution portions of other enterprises, covered warrants, and in case of reorganization of the stock exchanges

1. The Ministry of Finance shall guide the listing and relisting of securities on a stock exchange by the following institutions:

a/ Institutions formed after the consolidation or merger of enterprises;

b/ Listed companies issuing stocks for swap with stocks or capital contribution portions in target companies, leading to an increase of over 50% in their charter capital (before the issuance);

c/ Securities companies issuing covered warrants.

2. In case of reorganization of the stock exchanges, the listing conditions are those prescribed in Articles 53 and 54 of this Decree. The classification of listing areas on the stock exchanges shall be decided by the Prime Minister.”

17. To amend and supplement Article 56 as follows:

“Article 56. Registration of trading on the Upcom trading system or listed securities trading system

1. Except for stocks which have been listed or registered for trading, publicly offered stocks shall be registered for centralized depository at the Vietnam Securities Depository and registered for trading on the Upcom trading system or for listing on the Stock Exchanges on the following principles:

a/ Within 90 days from the date of completion of the public offering of stocks for equitization of a state enterprise in accordance with the law on equitization, or within 30 days from the date of completion of the public offering of securities of another enterprise in accordance with the law on securities, the issuer shall complete procedures for enterprise re-registration (if any), registration for depository of shares and stocks at the Vietnam Securities Depository and registration for trading on the Upcom trading system;     

b/ In case a state enterprise equitized under Article 22 of this Decree in the form of public offering of stocks fully satisfies the listing conditions under Article 53 or 54 of this Decree, it shall submit the listing dossier immediately after the completion of the offering and report on offering results to the State Securities Commission.

2. The Ministry of Finance shall specify the dossier and procedures for registration for trading on the Upcom trading system, additional listing or trading registration.”

18. To amend Point b, Clause 2, and Point g, Clause 4, Article 57 as follows:

“b/ The original decision of the Shareholders’ General Meeting adopting the stock listing or decision of the competent state agency approving the equitization plan (in case of listing of stocks of an equitized state enterprise);”

“g/ The original report on investment portfolio of the fund or securities investment company at the time of listing registration with the certification of the supervisory bank. In case of listing registration of certificates of portfolio swap funds, the index use contract and contracts with fund founding members are also required.”

19. To amend Point b, Clause 2, Article 59 as follows:

“b/ A copy of the securities offering registration certificate or another document granted by the State Securities Commission in case of additional issuance of stocks.”

20. To amend Point e, Clause 1; Point a, Clause 2; and Clause 4 of Article 60 as follows:

“1. Securities shall be delisted upon occurrence of any of the following cases:

e/ The listing institution terminates its existence or no longer satisfies the listing conditions due to merger, consolidation, division, separation, dissolution or bankruptcy, or offers or issues 50% or more of its outstanding stocks for swap with stocks or capital contribution portions in another enterprise; the securities investment fund terminates its operation; the listing institution no longer satisfies the condition of being a public company;”

“2. Securities shall be delisted when the listing institution asks for delisting and the following conditions are fully satisfied:

a/ Conditions for delisting:

- The delisting decision is adopted by the Shareholders’ General Meeting in accordance with the law on enterprises with at least 51% of shareholders who are not major shareholders voting for;

- The delisting may be effected at least 2 years after stocks are listed on the Stock Exchange;”

“4. Stocks of a delisted company that still satisfies the condition of being a public company shall be registered for trading on the Upcom trading system immediately after the delisting. The order and procedures for delisting of stocks, registration for trading of stocks on the Upcom trading system, delisting of investment fund certificates or securities of securities investment companies must comply with the guidance of the Ministry of Finance.”

21. To amend Clause 9 of, and add Clauses 11, 12 and 13 to, Article 71 as follows:

“9. A foreign investor may establish or buy shares or capital contribution portions to hold an unlimited percentage of the charter capital of a securities trading institution on the following principles:

a/ A foreign institutional investor satisfying the conditions prescribed in Clause 10 of this Article may buy to hold up to 100 percent of the charter capital of a securities trading institution; and may establish a wholly foreign-owned securities trading institution;

A foreign institutional investor that fails to satisfy the conditions prescribed in Clause 10 of this Article or a foreign individual investor may only hold under 51 percent of the charter capital of a securities trading institution.

b/ To comply with the provision of Point c, Clause 7 (for securities companies) or Point c, Clause 8 of this Article (for fund management companies).”

“11. A securities trading institution may issue stocks to increase its capital from the capital surplus source in offerings or issuances, or due to difference between sale price and cost price of treasury stocks, or from retained profits and other lawful sources of the equity capital.

a/ In case of issuance of stocks to increase capital from the capital surplus source due to difference between the par value and sale price in offerings or issuances, the company may only conduct such issuance one year after the completion of the latest offering or issuance. In case of issuance of stocks from the capital surplus source due to difference between the sale price and cost price of treasury stocks, the issuance may only be conducted after such treasury stocks are sold out;

b/ In case of issuance of stocks to increase capital from retained profits and other lawful sources of the equity capital, the company may only conduct such issuance when having no accumulated loss and sufficient capital for the issuance after fully appropriating investment provision, non-performing loan provision and other provisions under regulations.

12. A securities company satisfying the following conditions may offer covered warrants:

a/ Having no accumulated loss, a charter capital and an equity capital of at least VND 1 trillion as stated in the latest audited annual financial statement and latest auditor-examined biannual financial statement;

b/ Being licensed for all securities business operations;

c/ Having deposited underlying securities or money amounts as collateral for payment for the offering at a depository bank that is not an affiliated person;

d/ Neither being placed in the state of warning, operation suspension or operation termination nor undergoing consolidation, merger, dissolution or bankruptcy;

dd/ Having its financial statement of the preceding year audited by an accredited audit firm without any exception.

13. The offering of covered warrants shall be approved by the State Securities Commission before being conducted. Dossiers, order and procedures for offering covered warrants; collateral level, type of underlying securities, market liquidity and capitalization criteria, free transfer percentage of underlying securities, scale of offerings and financial targets of issuers of underlying securities must comply with the guidance of the Ministry of Finance.”

22. To add the following Article 90a below Article 90:

“Article 90a. Contribution of capital in real estate to real estate investment funds

1. An investor may contribute capital in real estate that satisfies the following conditions to establish a real estate investment fund or increase the charter capital of a real estate investment fund:

a/ Real estate satisfies the conditions prescribed in the fund charter and conform to investment objectives and policies of the fund;

b/ Real estate projected to be contributed as capital to the fund is lawfully owned by the investor and not subject to the ownership or use right transfer restriction; is not a security asset put in pledge, mortgage, collateral or an escrow account or frozen or involved in another secured asset transaction in accordance with the civil law, and satisfies the conditions prescribed in Clause 2, Article 91 of this Decree.

2. A dossier for registration of public offering of fund certificates in case an investor contributes capital in real estate must comprise:

a/ The original written registration of public offering of fund certificates;

b/ Fund charter;

c/ The original prospectus and summarized prospectus;

d/ In-principle depository and supervision contract with a supervisory bank; in-principle valuation contract with a valuation organization (if any); real estate management contract with a real estate management organization; in-principle fund certificate distribution contract between the fund management company and distribution agents;

dd/ The original list of investors contributing capital in real estate and founding members of the fund (if any), enclosed with the written agreement on contribution of real estate to establish the real estate investment fund, stating the agreed value of the real estate contributed as capital, and the following documents:

- Authenticated copies of establishment decisions and enterprise registration certificates or equivalent documents of institutional investors; valid copies of identity cards or citizen identifications of individual investors;

- The original minutes and resolutions of the Shareholders’ General Meeting and the meeting of the Board of Directors or Members’ Council or the decision of the owner of the capital contributor in compliance with the provisions of the company charter on contribution of assets to the real estate investment fund, and the commitment to complying with the fund certificate transfer restriction;

- Copies of documents proving the ownership and use rights of real estate of capital-contributing investors in accordance with the laws on real estate business, housing and land.

e/ The original latest annual financial statement audited by an independent audit firm or the report of the real estate management institution on commercial operation of real estate in the latest year certified by an independent audit firm and latest quarterly reports;

g/ The original deeds of real estate price appraisal of two (2) independent price appraisers;

h/ Personal files of professional staff members in the real estate investment fund management section, made under the guidance of the Ministry of Finance;

k/ The issuance underwriting commitment (if any).

3. A dossier for offering or issuance of fund certificates to increase capital for an investor contributing capital in real estate must comprise:

a/ The documents specified at Points a, b, c, dd, e and g, Clause 2 of this Article;

b/ The original minutes and resolution of the investors’ general meeting approving the additional offering of fund certificates to increase the capital of the fund and the issuance and capital use plan. The minutes of the meeting and resolution of the fund’s representative board approving the issuance dossier, time and price, criteria for price determination, and investors to whom fund certificates are to be offered in case the right to buy fund certificates projected to be issued is not fully distributed;

c/ The original financial statement of the year preceding the year of requested issuance of fund certificates which has been audited by an independent audit firm;

d/ The original report on valuation and revaluation results, deeds of price appraisal of the existing real estate of the fund, and report on net asset value with the certification of  the supervisory bank at the time of dossier submission.

4. The valuation of real estate to be contributed to a real estate investment fund shall be conducted by two independent price appraisers in accordance with the laws on price appraisal and real estate business and relevant laws. The valuation shall be conducted within six (6) months before the date of submission of the dossier for fund certificate offering or issuance. In case of establishment of a fund, the value of assets contributed as capital shall be accepted by all investors contributing real estate as capital and founding members (if any). In case the charter capital of a fund is increased, the value of assets contributed as capital shall be approved by the Investors’ General Meeting of the fund.

In case the valuated value of real estate contributed to a fund is higher than its real value at the time of capital contribution, investors contributing real estate as capital shall jointly contribute the difference between the valuated value and real value of the real estate upon completion of the valuation; and at the same time take joint responsibility for damage caused by intentional overvaluation.

5. The transfer of real estate ownership and use rights from investors to the fund must comply with the law on enterprises and relevant laws.

23. To amend and supplement Points a and dd, Clause 1, Article 91 as follows:

“Article 91. Investment activities of real estate investment funds

1. A real estate investment fund shall ensure that:

a/ At least 65 percent of its net asset value be invested in real estate in Vietnam for the purpose of lease or commercial operation for earning stable profits and in compliance with Clause 2 of this Article, and stocks of an issuer being a real estate business institution having turnover or income from the ownership, lease and commercial operation of real estate account for at least 65 percent of the total turnover or income (below referred to as real estate company);

dd/ At most 35 percent of its net asset value be invested in money and money equivalent instruments, valuable papers and negotiable instruments specified by the banking law, government bonds or government-guaranteed bonds, listed securities, securities registered for trading, excluding investment in stocks of real estate companies. Investment in these assets is subject to the following limits:

- No more than 5 percent of the fund’s total asset value may be invested in securities issued by a single institution, except government bonds;

- No more than 10 percent of the fund’s total asset value may be invested in issued securities of a group of companies being parent and subsidiary companies and affiliate companies;

- No more than 10 percent of outstanding securities of a single issuer;”

24. To annul Articles 3 and 8; Clauses 1 and 4 of Article 23; Point i, Clause 1 of Article 60; Point b, Clause 10 of Article 71; and Clause 4 of Article 77

Article 2. Implementation provisions

1. This Decree takes effect on September 1, 2015.

2. To annul the Prime Minister’s Decision No. 55/2009/QD-TTg of April 15, 2009, on the holding rate of foreign investors on the Vietnamese securities market.

 Article 3. Organization of implementation

1. The Ministry of Finance shall guide the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN TAN DUNG