THE MINISTRY OF FINANCE

Circular No. 73/2013/TT-BTC dated May 29, 2013 of the Ministry of Finance detailing some articles on securities listing at 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 Law No. 70/2006/QH11 dated June 29, 2006 on Securities;

Pursuant to the Law No. 62/2010/QH12 dated November 24, 2010 amending and supplementing a number of articles of Law on Securities;

Pursuant to the Law No. 60/2005/QH11 dated November 29, 2005 on Enterprise;

Pursuant to the Decree No. 58/2012/ND-CP dated 20/7/2012 stipulating in details 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. 118/2008/ND-CP dated November 27, 2008 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of Chairman of State Securities Commission;

The Minister of Finance promulgates the Circular detailing some articles on securities listing at 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,

Chapter 1

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GENRAL PROVISIONS

Article 1. Scope and subjects of regulation

This Circular prescribes on conditions for listing of joint-stock companies formed after the course of consolidating, merging enterprises and dossier of registering for listing securities at the Stock Exchanges (SEs) of Ho Chi Minh city and Hanoi.

Article 2. Interpretation of terms

1. Companies in the same organizational type are companies that have the same organizational type of enterprises such as:  Joint-Stock Companies, Limited Liability Companies.

2. Consolidation of enterprises means case where two or several companies in the same organizational type (hereinafter referred to as the consolidated companies) consolidate into a new company (hereinafter referred to as the consolidation company) by transferring all assets, rights, obligations and lawful benefits to the consolidation company, and terminating the existence of the consolidated companies as prescribed in Article 152 of the Law on enterprises No. 60/2005/QH11.

3. Merger of enterprises means case where one or several companies in the same organizational type (hereinafter referred to as the merged companies) merge into other company (hereinafter referred to as the company receiving merger) by transferring all assets, rights, obligations and lawful benefits to the company receiving merger, and terminating the existence of the merged company (ies) as prescribed in Article 153 of the Law on enterprises No. 60/2005/QH11.

4. Phrases of “company” and “enterprise” are used in the same meaning at this Circular.

Chapter 2

CONDITIONS FOR LISTING SECURITIES OF JOINT-STOCK COMPANIES FORMED AFTER ENTERPRISE CONSOLIDATION AND MERGE

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Article 3. Conditions for listing securities of joint-stock companies formed after enterprise consolidation and merge at the Stock Exchange (SE) of Ho Chi Minh city

1. Conditions for listing shares

1.1. Conditions for listing shares of companies formed after enterprise consolidation

a. Companies formed after consolidating two (02) or several enterprises which are companies listing at the Stock Exchange (SE) of Ho Chi Minh city must satisfy conditions specified in points a, c, d, dd and e clause 1 Article 53 of the Decree No. 58/2012/ND-CP.

b. Companies formed after consolidating two (02) or several enterprises of which at least one company listing at the Stock Exchange (SE) of Ho Chi Minh city and at least one company not listing at the Stock Exchange (SE) of Ho Chi Minh city must satisfy conditions specified in points a, c, d, dd and e clause 1 Article 53 of the Decree No. 58/2012/ND-CP; concurrently the unlisted company (ies) must satisfies conditions of having at least two (02) years operating under form of joint-stock company, counted to the time when the company formed after consolidation is granted Certificate of Business registration; the rate of post-tax profit on equity capital (ROE) in the last year is not less than 05% and the business operation of two (02) years preceding the consolidation year must have interest; having no payable debts that are overdue more than one (01) year; having no accumulated losses counted to the consolidation year; complying with regulations of law on accounting and financial statement.

c. Companies formed after consolidating two (02) or several enterprises which are not companies listing at the Stock Exchange (SE) of Ho Chi Minh city must satisfy fully conditions specified in clause 1 Article 53 of the Decree No. 58/2012/ND-CP.

1.2. Conditions for listing shares of companies formed after enterprise merge

a. If the company receiving merge and the merged companies are companies listing at the Stock Exchange (SE) of Ho Chi Minh city, the company formed after merging must implement registration for modification of listing.

b. If the company receiving merge is the listed company and the merged companies are not companies listing at the Stock Exchange (SE) of Ho Chi Minh city, the company formed after merging will be entitled to implement registration for listing to supplement the swap shares of the merged company when:

b1. The merged company meets the following conditions: Having at least two (02) years operated under form of joint-stock company counted to the time when the company formed after merger is granted Certificate of Business registration; the rate of post-tax profit on equity capital (ROE) in the last year is not less than 05% and the business operation of two (02) years preceding the consolidation year must have interest; having no payable debts that are overdue more than one (01) year; having no accumulated losses counted to the consolidation year; complying with regulations of law on accounting and financial statement.

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b2. If the merged company fails to meet conditions specified in the point b1 as mentioned above, it must have the ROE rate on the audited annual consolidation financial statement or the audited semi-year consolidated financial statement (made after time of merger) of the company formed after merger is not less than 05% or have the ROE rate being positive on the audited annual consolidated financial statement (made after time of merger) and more than the ROE rate on the audited annual financial statement of the last year of the company receiving merger.

b3. If the merged company and the ROE rate of the company formed after merger fail to satisfy the above conditions, quantity of shares issued additionally (corresponding to the capital of the merged company) are only entitled to list additionally after one (01) year from the time when the company formed after merger is granted Certificate of Business registration.

c. If the company receiving merger is not company listing at the Stock Exchange (SE) of Ho Chi Minh city, the company formed after merger must satisfy fully conditions specified in clause 1 Article 53 of the Decree No. 58/2012/ND-CP.

2. Conditions for listing bonds after consolidating/merging enterprises

The company formed after consolidating/merging may register the bond listing as prescribed in clause 2 Article 53 of the Decree No. 58/2012/ND-CP.

Article 4. Conditions for listing securities of joint-stock companies formed after enterprise consolidation and merge at the Stock Exchange (SE) of Hanoi

1. Conditions for listing shares

1.1. Conditions for listing shares of companies formed after enterprise consolidation

a. Companies formed after consolidating two (02) or several enterprises which are companies listing at the Stock Exchange (SE) of Hanoi must satisfy conditions specified in points a, c, d and dd clause 1 Article 54 of the Decree No. 58/2012/ND-CP.

b. Companies formed after consolidating two (02) or several enterprises of which at least one company listing at the Stock Exchange (SE) of Hanoi and at least one company not listing at the Stock Exchange (SE) of Hanoi must satisfy conditions specified in points a, c, d and dd clause 1 Article 54 of the Decree No. 58/2012/ND-CP; concurrently the unlisted company (ies) must satisfies conditions of having at least one (01) year operating under form of joint-stock company, counted to the time when the company formed after consolidation is granted Certificate of Business registration; the rate of post-tax profit on equity capital (ROE) in the year preceding the consolidation year is not less than 05%; having no payable debts that are overdue more than one (01) year; having no accumulated losses counted to the consolidation year; complying with regulations of law on accounting and financial statement.

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c. Companies formed after consolidating two (02) or several enterprises which are not companies listing at the Stock Exchange (SE) of Hanoi must satisfy conditions specified in clause 1 Article 54 of the Decree No. 58/2012/ND-CP.

1.2. Conditions for listing shares of companies formed after merging enterprises

a. If the company receiving merge is company listing at the Stock Exchange (SE) of Hanoi and the merged companies are companies listing at the Stock Exchange (SE), the company formed after merging must implement registration for modification of listing.

b. If the company receiving merge is the listed company at the Stock Exchange (SE) of Hanoi, but the merged companies are not companies listing at the Stock Exchange (SE), the company formed after merging will be entitled to implement registration for listing to supplement the swap shares of the merged company when:

b1. The merged company must satisfy conditions of having at least one (1) year operated under form of joint-stock company counted to the time when the company formed after merger is granted Certificate of Business registration; the rate of post-tax profit on equity capital (ROE) in the year preceding the merger year is not less than 05%; having no payable debts that are overdue more than one (01) year; having no accumulated losses counted to the consolidation year; complying with regulations of law on accounting and financial statement.

b2. If the merged company fails to meet conditions specified in the point b1 as mentioned above, it must have the ROE rate on the audited annual consolidation financial statement or the audited semi-year consolidated financial statement (made after time of merger) of the company formed after merger is not less than 05% or have the ROE rate being positive on the audited annual consolidated financial statement (made after time of merger) and more than the ROE rate on the audited annual financial statement of the last year of the company receiving merger.

b3. If the merged company and the ROE rate of the company formed after merger fail to satisfy the above conditions, quantity of shares issued additionally (corresponding to the capital of the merged company) are only entitled to list additionally after one (01) year from the time when the company formed after merger is granted Certificate of Business registration.

c. If the company receiving merger is not company listing at the Stock Exchange (SE) of Hanoi, the company formed after merger must satisfy fully conditions specified in clause 1 Article 54 of the Decree No. 58/2012/ND-CP.

2. Conditions for listing bonds after consolidating/merging enterprises

The company formed after consolidating/merging may register the bond listing as prescribed in clause 2 Article 54 of the Decree No. 58/2012/ND-CP.

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Chapter 3

DOSSIERS OF AND PROCEDURES FOR LISTING REGISTRATION AT THE STOCK EXCHANGES

Article 5. Dossiers of and procedures

1. Conditions for registration for listing shares:

1.1. Dossier of registration for listing shares at the first time:

a. Dossier of registration for listing shares as prescribed in points b, dd, e, g, h, i, k clause 2 Article 57 of the Decree No. 58/2012/ND-CP;

b. Written registration for listing shares made according to the Annex No. 01 (a);

c. Book of shareholder registration made within one (01) month before the time of submitting dossier for the listing registration enclosed with the list of major shareholders, internal shareholders, strategy shareholders (quantity, the rate of hold shares, time of transfer limit (if any)) and list of relevant persons of major shareholders, internal shareholders;

d. The prospectus made according to the form in Annex No.02.

1.2. Dossier of registration for listing shares of companies formed after consolidating:

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a. In case where companies formed after consolidating two (02) or several enterprises which are companies listing at the Stock Exchange:

- Dossier of registration for listing complies with clause 1.1 of this Article, exclude Annex VI, VII about the audit report and financial statements at prospectus;

- Consolidation contract as prescribed by the Law on Enterprise;

- Written consent of competent state agencies for the consolidation of enterprises (in case it is required to have the consent of competent state agencies).

b. In case where companies formed after consolidating two (02) or several enterprises of which have at least one listed company and one company not being company listing at the Stock Exchange:

- Dossier of registration for listing complies with clause 1.1 of this Article, exclude Annexes VI and VII about the audit report and financial statements at prospectus;

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

- Consolidation contract as prescribed by the Law on Enterprise;

- Written consent of competent state agencies for the consolidation of enterprises (in case it is required to have the consent of competent state agencies).

c. In case where companies formed after consolidating two (02) or several enterprises which are not companies listing at the Stock Exchange, dossier of registration for listing complies with clause 1.1 of this Article.

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1.3. Dossier of registration for listing shares of companies formed after merger:

a. In case of joint-stock companies formed after merger as prescribed in points a and b3 clause 1.2 Article 3 and points a and b3 clause 1.2 Article 4 of this Circular, dossier of changing the listing registration complies with clause 2 Article 59 of the Decree No. 58/2012/ND-CP;

- Written consent of competent state agencies for the merger of enterprises (in case it is required to have the consent of competent state agencies).

b. In case of joint-stock companies formed after merger as prescribed in points b1 and b2 clause 1.2 Article 3 and points b1 and b2 clause 1.2 Article 4 of this Circular:

- Dossier of the listing registration complies with clause 1.1 of this Article;

- The company receiving merger and the merged companies must have annual financial statement audited before merger;

- Merger contract as prescribed by the Law on Enterprise;

- Annual consolidated financial statement audited (made after time of merger) of the company formed after merger;

- Written consent of competent state agencies for the merger of enterprises (in case it is required to have the consent of competent state agencies).

c. In case of joint-stock companies formed after merger as prescribed in point c clause 1.2 Article 3 and point c clause 1.2 Article 4 of this Circular, dossier of the listing registration complies with clause 1.1 of this Article;

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2. Dossier of registration for listing bonds includes:

a. Dossier of registration for listing bonds as prescribed in points b, c, dd, e, g, h and i clause 3 Article 57 of the Decree No. 58/2012/ND-CP;

b. Written registration for listing made according to the Annex No. 01 (b);

c. The prospectus made according to the form in Annex No.02.

3. Dossier of registration for listing public fund certificates and shares of companies for investment in public securities includes:

a. Dossier of registration for listing public fund certificates and shares of companies for investment in public securities as prescribed in points b, c, dd, e, g and h clause 4 Article 57 of the Decree No. 58/2012/ND-CP;

b. Written registration for listing made according to the form in Annex No. 01 (c) and No. 01 (d);

c. The prospectus made according to the form in Annex No. 03 and No. 04.

4. Joint-stock companies formed after merger as prescribed in points a and b clause 1.1 of Article 3; points a and b clause 1.1 Article 4 must conduct procedures for the listing registration within three (03) months after the companies formed after merger are granted certificates of business registration.

5. The Stock Exchange shall specify procedures for registration for listing securities of companies formed after consolidating, merging.

Chapter 4

IMPLEMENTATION PROVISIONS

Article 6. Implementation provisions

This Circular takes effect on July 15, 2013.

The model prospectus specified in Annex No. 02 of this Circular replaces the model prospectus specified in Annex No. 03 issued attached with the Decision No. 13/2007/QD-BTC dated 13/03/2007 of the Minister of Finance issuing model prospectus in application files for registration of a public offer of securities; the model prospectus specified in Annexes No. 03 and 04 of this Circular replace the model prospectus providing for listing in Annexes No. 04 and 05 promulgated together with the above Decision.

Article 7. Implementation organization

The Stock Exchanges, Stock Depository Centers, companies registering the listing and relevant organizations and individuals shall implement this Circular.

For the Minister

Deputy Minister

Tran Xuan Ha

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