Nghị định 60/2015/NĐ-CP sửa đổi Nghị định 58/2012/NĐ-CP hướng dẫn Luật Chứng khoán và Luật Chứng khoán sửa đổi

DECREE

AMENDING, SUPPLEMENTING SEVERAL ARTICLES OF THE GOVERNMENT'S DECREE NO. 58/2012/NĐ-CP DATED JULY 20, 2012 ON PROVIDING SPECIFIC PROVISIONS FOR THE IMPLEMENTATION OF CERTAIN ARTICLES OF THE LAW ON SECURITIES AND THE LAW ON AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE LAW ON SECURITIES

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

Pursuant to the Law on Enterprise dated November 26, 2014;

Pursuant to the Law on Investment dated November 26, 2014;

Pursuant to the Law on Securities dated June 29, 2006; the Law on Amending, Supplementing certain articles of the Law on Securities dated November 24, 2010;

After considering the request made by the Minister of Finance,

The Government hereby promulgates the Decree on amending, supplementing several articles of the Government's Decree No. 58/2012/NĐ-CP dated July 20, 2012 on providing specific provisions for the implementation of certain articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities.

Article 1. Amending, supplementing several articles of the Government's Decree No. 58/2012/NĐ-CP dated July 20, 2012 on providing specific provisions for the implementation of certain articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities as follows:

1. Amending Clause 2, Clause 13 in Article 2 and adding Clause 20, 21, 22, 23 and 24 to Article 2 as follows:

“2. Issuing stocks for swap refers to the additional issuance of stocks and use them to swap for stocks, contributed capital in other enterprises or debts issued by an organization to the creditor.”

13. Rate of foreign ownership refers to the total rate of voting stocks and contributed capital amounts owned by all of foreign investors and economic organizations of which more than 51% of the charter capital in a public company, securities trading organization or securities investment fund is held by foreign investors.

20. Upcom system refers to the venue where stocks of unlisted public companies, or shares of state-owned enterprises equitized in the form of a public securities offering, are exchanged. 

21. Foreign investors are composed of:

a) Individuals holding foreign nationality;

b) Organizations established under the foreign legislation and carrying out investment and business operations in Vietnam.

22. Securities trading organizations comprise securities companies and fund management companies.

23. Covered warrant refers to an asset-backed security issued by a securities company to allow the holder to buy (call covered warrant) or sell (put covered warrant) underlying stocks from and to that issuing company at a specified price on or before a pre-determined date, or gain the net profit generated from the differential between the strike price and the market price of the underlying asset at the time of exercise.   

24. Creditor refers to the lender or the party allowed the right to request an organization or individual to fulfill debt repayment obligations.”

2. Adding Article 2a coming after Article 2 as follows:

“Article 2a. Rate of foreign ownership on Vietnam's securities exchange market

1. Rate of foreign ownership in a public company shall be stipulated as follows:

a) Where the International Agreement of which Vietnam is a signatory lays down regulations on the rate of foreign ownership, it will be governed by this Agreement;

b) Where a public company operates in the investment and business sector which is governed by the law on investment, other relevant laws stipulating the rate of foreign ownership, it will be governed by these legal regulations.

Where a public company operates in the investment and business sector subject to conditions applied to foreign investors but none of specific regulations on the rate of foreign ownership, the maximum rate of foreign ownership will be 49%;

c) Where a public company operates in multiple industries or sectors that have different regulations on the rate of foreign ownership, it will not exceed the lowest rate defined in these industries or sectors that have regulations on the rate of foreign ownership, unless otherwise regulated by the International Agreement;

d) As regards a public company which is not governed by regulations laid down in Point a, b, c of this Clause, the rate of foreign ownership will not be restricted, unless otherwise stipulated by the company’s rules and regulations.

2. As regards a state-owned enterprise equitized in the form of a public securities offering, the rate of foreign ownership will be governed under legal regulations on equitization.  If there is none of provisions enshrined in the law on equitization, the rate of foreign ownership will be governed under the equivalent regulations laid down in Clause 1 of this Article.

3. Bond investment made by foreign investors shall be regulated as follows:

a) Foreign investors shall be allowed to put unrestricted investments in the Government bond, Government-backed bond, local government bonds, corporate bond, unless otherwise stipulated by relevant laws or the issuing organization;

b) With respect to the issue of convertible bonds, the issuer must ensure that the rate of foreign ownership on the maturity date when these bonds are converted into stocks or on the date when stocks are bought shall conform to regulations laid down in Clause 1, 2 of this Article.

4. Foreign investors shall be entitled to make unrestricted investments in certificates of securities investment fund, stocks of securities investment companies, non-voting stocks of public companies, derivative securities, depository receipts, unless otherwise prescribed by the issuer’s rules and regulations.  Except for the open-end fund, the securities investment fund that has the rate of foreign ownership equal to more than 51%, the rate of foreign ownership must conform to statutory conditions and procedures applied to foreign investors that contribute capital, buy securities or paid-in capital of economic organizations.   

5. Public companies, listed companies must report to the State Securities Commission and provide updated information about the rate of foreign ownership on their websites, and websites of the Stock Exchange and the Vietnam Securities Depository.”

3. Amending, supplementing Article 4 as follows:

“Article 4. Requirements for a public company’s non-public securities offering

1. Requirements for a public company’s non-public securities offering shall be stipulated as follows:

a) The public company has obtained the decision to approve the plan to sell and use assets from the General Meeting of Shareholders. This plan should define the objective, target investors and criteria for selection of target investors, the number of investors and proposed offering scale. 

The plan should define target investors to enable the General Meeting of Shareholders to grant their approval and will only be changed thereafter under the following circumstances:

- The public company is selling stocks to an organization or individual or a group of organizations or individuals and involved persons of that organization or individual which makes their ownership rate exceed the rate stipulated in Clause 11 Article 1 of the Law on Amending or Supplementing several articles of the Law on Securities;    

- The public company is selling stocks to an organization or individual or a group of organizations or individuals and involved persons of that organization or individual in proportion to more than 10% of the charter capital issued in each offering or offerings that take place within 12 latest months; 

b) The public company is complying with regulations on the stock assignment restriction time and the time length between offerings under the provisions of Clause 6 Article 1 of the Law on Amending several articles of the Law on Securities;

c) The public company is conforming to other requirements under the provisions of relevant laws if the issuing company is the enterprise operating in the conditional investment and business industry or sector;

d) The issuing company is not the parent company of the stock offering company; or neither of companies are subsidiary companies of a parent company.

2. Requirements for a public company’s non-public securities offering for debt swaps shall be stipulated as follows:

a) The public company has obtained the decision to approve the plan to sell their assets from the General Meeting of Shareholders. The plan must define the objective, the estimate of stocks to be sold, the list of creditors, the value of convertible debts and the estimated amount of stocks that each creditor is planned to swap, swap-rate calculation method and specific swap rates.  The swap-rate calculation method and specific swap rates should be advised by the authorized audit organization or securities companies who have competence in valuation and are not involved entities (hereinafter referred to as independent valuer).   In case there is any discrepancy between the proposed swap rate and the reasonable swap rate determined by the independent valuer, the Managing Board must submit the written explanation for this so that the General Meeting of Shareholders can consider granting their decision;

b) Convertible debts must be shown in the latest financial statement which has been audited or reviewed and approved by the General Meeting of Shareholders;

c) The public company is conforming to other requirements in accordance with relevant laws if the issuing company or the creditor is the enterprise operating in the conditional investment and business industry or sector;

d) The public company must meet requirements stipulated in Point b Clause 1 of this Article;

dd) The issuing company is not the parent company of the creditor; or neither of the issuing company and the creditor are the subsidiary company of a parent company.

3. Requirements for selling stocks to be swapped for stocks of non-public companies, or selling stocks to one or several specific shareholders to be swapped for stocks of other public companies or selling stocks to be swapped for the contributed capital in a limited liability company as follows: 

a) The public company has obtained the decision to approve the plan to sell their assets from the General Meeting of Shareholders. The plan must define the objective, the estimate of stocks to be sold, the list of investors, the estimated amount of stocks to be issued for swaps and the number of stocks, contributed capital received from swaps with each investor, the swap-rate calculation method and specific swap rates.  The swap-rate calculation method and the swap rate should be advised by independent valuers.  In case there is any discrepancy between the proposed swap rate and the reasonable swap rate determined by the independent valuer, the Managing Board must submit the written explanation for this so that the General Meeting of Shareholders can consider granting their decision.

Swapping stocks of one or several specific shareholder(s) in other public companies must be approved by the General Meeting of Shareholders in the swapped-stock company if the rate at which the issuing company owns stocks in the public company whose stocks are swapped exceeds the rate of stocks defined in the tender offer in accordance with Clause 11 Article 1 of the Law on Amending, Supplementing several articles of the Law on Securities;

b) The public company’s stocks or contributed capital to be swapped are not subject to assignment restrictions at the swap time in accordance with provisions laid down in rules and regulations of a joint-stock company, limited liability company or other relevant laws;

c) The public company is conforming to other requirements under the provisions of relevant laws if the issuing company, or the company whose stocks or contributed capital are swapped is the enterprise operating in the conditional investment and business industry or sector, and meets requirements stipulated by laws on economic concentrations if the public company needs swaps for merger or acquisition purposes;

d) The public company must meet requirements stipulated in Point b Clause 1 of this Article;

dd) The financial statement of the company whose stocks or contributed capital are swapped has been audited by authorized auditors. Unqualified opinions without any exception are accepted;

e) The issuing company is not the parent company of the company whose stocks or contributed capital are swapped; or neither of companies are subsidiary companies of a parent company.

4. Securities trading company when carrying out the non-public securities offering, or the non-public securities offering for debt swaps must comply with regulations laid down in Clause 1, Clause 2 of this Article. The securities trading company shall be entitled to swap their stocks for shares or contributed capital for the purpose of acquiring or merging with other securities trading companies operating in the same industry, or carry out the non-public securities offering for transformation into a joint-stock company under the instructions of the Ministry of Finance.”  

4. Amending, supplementing Article 5 as follows:

“Article 5. Documentation submitted to apply for a public company’s non-public securities offering

1. Documentation submitted to apply for a public company’s non-public securities offering shall be composed of the followings:

a) The original registration form for the non-public securities offering by adopting the Form No. 01 enclosed herewith.

b) The original or duplicate copy of the Minutes of the General Meeting of Shareholders; the original copy of the Decision of the General Meeting of Shareholders and the Managing Board on approval for the plan to sell and use assets, enclosing the plan to sell and use assets, the list of target investors (if available) and the estimated amount of stocks to be sold to each investor;    

c) Materials used for providing information about the schedule of the offering of stocks to investors (if any);

d) The duplicate copy of materials issued by competent authorities or equivalent ones proving that the issuing company complies with regulations laid down in Point c Clause 1 Article 4 hereof;

dd) The original copy of written commitments between the issuing company and target investors on compliance with regulations laid down in Point d Clause 1 Article 4 hereof.

2. Documentation submitted to apply for the non-public securities offering for debt swaps shall comprise the followings:

a) Materials stipulated in Point a, b, c Clause 1 of this Article;

b) The original copy of the latest annual financial statement which has been audited by authorized auditors and latest reviewed mid-year financial statement of the issuing company.  If debts have not been explained in that financial statement, the written confirmation of the list of creditors and value of debts must be received from the financial auditor in order for the General Meeting of Shareholders to grant its approval;

c) The duplicate copy of materials issued by competent authorities or other legal ones proving that the issuing company and creditors have complied with regulations laid down in Point c Clause 2 Article 4 hereof, except when the issuing company and these creditors are securities trading organizations;

d) The original copy of the independent valuer’s opinions in writing and the written explanation of the Managing Board (if any) in relation to the swap-rate calculation method and specific swap rates;

dd) The original copy of written commitments between the issuing company and creditors on compliance with regulations laid down in Point dd Clause 2 Article 4 hereof.

3. Documentation submitted to apply for the non-public securities offering for the purpose of swapping stocks for shares of joint-stock companies or contributed capital in limited liability companies  

a) Materials stipulated in Point a, b, c Clause 1 of this Article;

b) The original copy of the written commitment between the holder of shares or contributed capital to be swapped, or the document kept by the legal representative of the company whose shares or contributed capital are swapped which states that these shares or contributed capital are not subject to the assignment restriction;

If swapping stocks of one or several specific shareholder(s) in other public company causes the rate at which the issuing company owns stocks in that public company to exceed the rate of stocks defined in the tender offer in accordance with Clause 11 Article 1 of the Law on Amending, Supplementing several articles of the Law on Securities, the decision on approval for swaps granted by the General Meeting of Shareholders in the company whose shares are swapped must be additionally provided. If this is a type of economic concentration and the competition management agency needs to be notified or consulted, the written document issued by this agency or opinions received from competent authorities should be additionally provided under the provisions of the laws on competition; 

c) The audited financial statement of the company whose shares or contributed capital are swapped;

d) The duplicate copy of materials issued by competent authorities or legitimate ones proving that the issuing company or the company whose shares or contributed capital are swapped has complied with regulations laid down in Point c Clause 3 Article 4 hereof;

dd) The original copy of written commitments between the issuing company and the company whose shares or contributed capital are swapped on compliance with regulations laid down in Point e Clause 3 Article 4 hereof.

4. Documentation submitted to apply for the non-public securities offering of the securities trading organization being the joint-stock company shall comprise the followings:

a) Materials stipulated in Clause 1, Clause 2 of this Article, depending on the stock offering purpose;

b) The original copy of the latest audited financial statement and legitimate materials proving that investors have an adequate amount of legal financing for the charter capital."

5. Amending, supplementing Article 6 as follows:

“Article 6. Procedure for a public company’s non-public securities offering

1. The issuing company submits the application for the non-public securities offering to the State Securities Commission.

2. If the application for the non-public securities offering has not been adequate and valid, within 5 days from receipt of this application, the State Securities Commission shall request in writing the issuing company to amend or correct their application. The duration when adequate and valid documentation are received begins from the time the issuing company completes this amendment or correction.

3. Within a permitted period of 15 days from receipt of adequate and valid documentation, the State Securities Commission notifies the issuing company and posts it on the website to confirm the receipt of all required documentation submitted to apply for the non-public securities offering of the issuing company.

4. The issuing company must open an escrow account and receive mobilized capital in accordance with regulations laid down in Clause 3 Article 21 of the Law on Securities, except when stocks are sold to swap debts, or to swap shares or contributed capital in other companies.

5. Within a maximum period of 10 days from the end of each offering, the issuing company shall send a report on the offering outcome by adopting the Form No. 02 enclosed herewith to the State Securities Commission with the confirmation of monetary collections issued by the commercial bank where the escrow account is opened. As for circumstances stipulated in Clause 2 and Clause 3 Article 4 hereof, the report on the outcome produced from this stock offering must be sent along with the written confirmation made by parties that receive swapped shares."

6. Amending Clause 2, 3, 4 in Article 7 and adding Clause 5 to Article 7 as follows:

“2. Amending, adding or explaining documentation upon the written request of the State Securities Commission.

3. The non-public securities offering must be implemented in conformity with the registered plan and complete each offering within 90 days from the date on which the State Securities Commission sends a notification of receiving all required documentation submitted to apply for this non-public securities offering.

4. The Managing Board shall be allowed to change contents relating to the asset utilization plan, criteria for determining or receiving investments, and purposes for which assets are used only when the General Meeting of Shareholders authorize it to do so, and this must conform to regulations laid down in the company's rules and regulations.   Within 10 days from the date on which the Managing Board makes a decision to change abovementioned contents, the issuing company shall report to State Securities Commission by completing the Form No. 03 given in the Appendix enclosed herewith, concurrently post revised contents on the website of the issuing company and fulfill the obligation to disclose information in accordance with the law on securities and securities market to the public company. All changes must be reported in the latest General Meeting of Shareholders.

5. The issuing company shall reveal the report on asset use accredited by auditors in the General Meeting of Shareholders or the detailed note to use of assets earned from the offering in the annual financial statement accredited by auditors. This regulation shall not apply in the event that the public company sells stocks for the purpose of swapping them for debts or shares or contributed capital."

7. Amending, supplementing Article 9 as follows:

“Article 9. General provisions on the public securities offering

1. The public securities offering shall be allowed under the following circumstances:

a) Enterprises meet public securities offering requirements under the provisions of Article 12 of the Law on Securities and Clause 7 Article 1 of the Law on Amending, Supplementing several articles of the Law on Securities, except for placement of securities of state-owned enterprises transformed into joint-stock companies in accordance with the law on equitization, legal regulations on management and use of the state funding in these enterprises;

b) The public securities offering serves the purpose of founding an enterprise under the provisions of Article 12, 13, 14 and 79 hereof.

2. The issuing company must register the public securities offering, except under the following circumstances:

a) The State ownership representative, State-owned Corporation, Incorporation and enterprises sells state-owned shares to the public in accordance with legal regulations on management and use of state funding in enterprises and laws on equitization; 

b) Major shareholders sell their shares to the public.

3. If the issuing company sells a part of shares in the total amount of shares registered for the public securities offering to one or several specific investor(s) (except for the circumstance under which they sell shares to current shareholders which are proportional to their ownership percentage or sell shares to employees), it must meet requirements for the securities offering, or conditions under which rights and obligations of other shareholders are not more advantaged than those of current shareholders, unless otherwise approved by the General Meeting of Shareholders.         The General Meeting of Shareholders and the Managing Board must define criteria and the list of these investors in accordance with regulations laid down in Clause 1 Article 4 hereof.  The number of shares in the abovementioned offering shall be subject to the assignment restriction within 01 year that begins from the date on which the offering was completed.

4. Sums gained from each securities offering must be deposited in the escrow account as stipulated in Clause 3 Article 21 enshrined in the Law on Securities. The issuing company shall not be allowed to spend these sums in the escrow account under any form until the offering is completed and must report to the State Securities Commission. If the issuing company is the commercial bank, another commercial bank must be authorized to block these sums. The bank where the escrow account has been opened must not be the issuing company's associate.

5. Within a maximum period of 10 days from the end of each offering, the issuing company shall report to the State Securities Commission and provide information on the offering outcome enclosing the confirmation given by the commercial bank where the escrow account used for blocking sums gained from the offering has been opened.

6. Within a permitted period of 03 working days from receipt of the report on the offering outcome, the State Securities Commission shall send a written notification of receipt of this notification to the issuing company, the Stock Exchange and the Vietnam Securities Depository.

7. After obtaining this notification from the State Securities Commission, the issuing company shall be requested to terminate the blockage and complete procedures for registration, depository, securities exchange and listing registration in accordance with regulations laid down in Clause 1 Article 56 hereof.

The Vietnam Securities Depository shall be responsible for collaborating with the Stock Exchange in making securities register for the concentrated depository available for exchange on the Upcom system. The issuing company shall be responsible for announcing information within 24 hours on the registration of exchange of securities on the Upcom system immediately after obtaining the notification of completed securities exchange registration from the Stock Exchange.

8. Asset utilization report

a) The Managing Board shall be allowed to change purposes for which assets are used only if the General Meeting of Shareholders gives its authorization.  If the General Meeting of Shareholders makes change to the purposes for which assets are used under the authorization of the General Meeting of Shareholders, within a maximum period of 10 days from the date on which the decision on change made to such purposes was granted, the issuing company must report to the State Securities Commission by adopting the Form No. 04 given in the Appendix enclosed herewith together with the decision of the Managing Board and other relevant materials issued by competent authorities on such change (when applicable), concurrently announce information about this change. The change made to the purposes for which assets are used should be reported in the latest General Meeting of Shareholders;  

b) If the capital mobilization serves the purpose of executing an investment project, every 6 months that begins from the date on which the offering is completed and ends on the date on which this project is completed or mobilized assets are completely allocated, the issuing company is obliged to report to the State Securities Commission by adopting the Form No. 05 given in the Appendix enclosed herewith and announce information about the progress of asset utilization. The issuing company must publicize the asset utilization report accredited by auditors in the General Meeting of Shareholders or the detailed demonstration of utilization of assets gained from the offering in the audited annual financial statement." 

8. Amending Clause 2 in Article 18 as follows:

“2. The following requirements must be satisfied:

a) Have the income statement in which the bottom line is positive at the offering registration time;

b) Operate from more than 01 year that begins on the date of merger or acquisition, except under the following circumstances:

- Organizations participating in the merger or acquisition in the year preceding the year when the merger or acquisition takes place earn their profits and make no accrued loss by the time when the merger or acquisition takes place; or

- Organizations are those formed after the merger or acquisition according to the restructuring project approved by the Prime Minister.”

9. Amending Point a Clause 2 Article 23 as follows:

“a) Have the issuing or swap plan approved by the General Meeting of Shareholders; comply with legal regulations on investment, or other relevant laws on requirements and ownership percentage that apply to foreign investors (when appropriate);"

10. Adding Article 28a coming after Article 28 as follows:

“Article 28a. Offering and listing of fund certificates in overseas countries

Fund management companies shall be allowed to sell, mobilize funds in overseas countries to establish the overseas investment fund, and list certificates of the Vietnam-based funds in overseas countries.   The mobilization of capital from overseas countries, offering and listing of fund certificates in overseas countries should be reported to the State Securities Commission and conform to legal regulations on foreign exchange management as well as other relevant laws. In case fund certificates of the Vietnam-based funds in overseas countries are listed, this must be approved by the General Meeting of fund investors and reported to the State Securities Commission.”  

11. Amending Point b Clause 1, adding Point g to Clause 1 and amending Clause 2 in Article 37 as follows:

“b) The public company must have sufficient funds to repurchase stocks from the following sources, such as share surplus, undistributed after-tax profits, other equity funds, used for supplementing the charter capital in accordance with legal regulations;”

“g) Total shares to be repurchased for fund certificates in all of repurchase attempts shall be restricted to less than 30% of outstanding common shares.”

“2. The share repurchase shall be exempted from being governed by regulations laid down in Clause 1 of this Article under the following circumstances:

a) Repurchasing stocks upon the request of shareholders is stipulated in Article 129 of the Enterprise Law; 

b) Repurchasing stocks from employees in accordance with the regulation on issuing stocks to employees; repurchasing private stocks issued according to the plan to issue stocks for the purpose of paying dividends, or issue stocks, is carried out under the guidance of the Ministry of Finance;

c) The securities company's repurchasing their own stocks for the purpose of correcting stock exchange errors is governed by the regulations adopted by the State Securities Commission.”

12. Amending Point d Clause 1, Clause 2 in Article 38 as follows:

“d) The public company has repurchased stocks within 06 months from the date on which the report on the fund stock transaction outcome was made, except the circumstances stipulated in Clause 2 Article 37 hereof; or has just completed the offering or issue of shares for the purpose of increasing assets within 06 months from the date on which the offering or issue ended."

“2. Except the circumstance under which shares are repurchased in proportion to the ownership percentage, or the company makes a tender offer for issued shares or repurchase shares under the decision, judgement of the Court or the verdict of the Arbitrator, the public company shall not be allowed to purchase shares of the following shareholders as fund stocks:  

a) The public company’s managers and associates under the provisions of the Law on Securities;

b) The holders of shares subject to the assignment restriction under the provisions of laws and the company’s rules and regulations;

c) Major shareholders as stipulated by the Law on Securities, except when the issuing company has registered transactions or listing on the Stock Exchange and transactions are carried out in the form of a securities order.”

13. Amending Clause 1, Clause 4 in Article 39 as follows:

“1. The public company shall only be permitted to sell their fund stocks after a period of 06 months that begins on the date on which the latest repurchase was completed, except if fund stocks are sold or used as bonus stocks granted to employees, or repurchased share transactions are governed by regulations laid down in Clause 2 Article 37 hereof.  The public company shall be entitled to eliminate fund stocks to reduce their charter capital; or sell or use them to increase their charter capital; avoid using them as collateral, assets used for capital contribution or swaps.”

“4. In case fund stocks are sold in the form of a public or non-public offering, the public company shall comply with regulations on the public or non-public securities offering.” 

14. Adding Clause 3 to Article 41 as follows:

“3. When participating in the public securities offering auctions, organizations or individuals are not required to comply with regulations on the tender offer as they intend to purchase stocks at the rate equal to or exceeding the share ownership rate as stipulated in Clause 11 Article 1 of the Law on Amending or Supplementing several articles of the Law on Securities.”

15. Amending Point a, b and c Clause 3 in Article 53 as follows:

“a) Being the closed-end fund, the real estate investment fund, the exchange-traded fund, or the securities investment public company;

b) Members of the Board of Directors of the securities investment fund, or members of the Board of Directors, the Control Board, the Director or the Director General, the Deputy Director or the Deputy Director General, the Chief Accountant, major shareholders being associates of members of the Board of Directors, the Control Board, the Director or the Director General, the Deputy Director or the Deputy Director General, the Chief Accountant (if any) of the securities investment company, shall undertake to hold 100% of their fund certificates or stocks within a specified period of 06 months from the listing date, and hold at least 50% of their fund certificates or stocks within the successive 06 months;    

If the real estate investment fund accepts the contributed capital in the form of a real property of which the value is making up more than 30% compared with the number of issued fund certificates, investors financing the fund with real estate are required to hold at least 30% of outstanding fund certificates within three (03) years from the date on which the fund was financed with such real estate, and hold at least 15% of outstanding fund certificates within three (03) successive years.     If investors financing the fund by investing real estate hold less than 30% of issued fund certificates, they are required to hold 100% of their existing fund certificates within three (03) years from the date on which the fund was financed with such real estate, and hold at least 15% of these certificates within three (03) successive years.   If investors financing the fund by investing real estate hold less than 15% of issued fund certificates, they are required to hold 100% of their existing fund certificates within six (06) years from the date on which the fund was financed with such real estate;

c) Have at least 100 holders of fund certificates in a public fund or at least 100 holders of stocks in a public investment company, exclusive of professional securities investors.  This regulation shall not apply to the exchange-traded fund;”

16. Amending, supplementing Article 55 as follows:

“Article 55. Securities listing of the acquiring company, the acquired company, the organization issuing stocks for the purpose of share or contributed capital swap with another enterprise, covered warrant and in the event of restructuring of the Stock Exchange

1. The Ministry of Finance shall provide guidance on listing or re-listing securities on the Stock Exchange for the following organizations:

a) Organizations coming into existence after a merger or acquisition;

b) Listed companies issuing shares for the purpose of swapping them for shares or contributed capital in target companies, which causes an increase by more than 50% of the charter capital compared with the charter capital in the pre-issuing stage;  

c) Covered warrants issued by the securities company.

2. As for the restructuring of Stock Exchanges, the listing requirements shall be governed by Article 53, 54 hereof. The classification of the listing zones at the Stock Exchange shall be carried out under the decision of the Prime Minister.”

17. Amending, supplementing Article 56 as follows:

“Article 56. Registration of securities exchange through the system of unlisted public companies (Upcom) or securities listing

1. Apart from listed stocks or those registered for transactions, public offering stocks must be registered for concentrated depository at the Vietnam Securities Depository and for transactions through the Upcom system and securities listing at the Stock Exchange according to the following rules:

a) Within a maximum period of 90 days from the end date of the public securities offering for the purpose of equitizing state-owned enterprises in accordance with legal regulations on equitization, and within a maximum period of 30 days from the end date of the public securities offering by other enterprises in accordance with legal regulations on securities, the issuing company must complete procedures for corporate re-registration (if any), share or stock depository registration with the Vietnam Securities Depository and transaction registration through the Upcom system;

b) If a state-owned enterprise that carries out equitization operations under the provisions of Article 22 hereof in the form of a public securities offering conforms to listing requirements stipulated in Article 53 or Article 54 hereof, this enterprise is required to submit application for listing immediately after the end of each offering and report the offering outcome to the State Securities Commission. 

2. The Ministry of Finance shall provide specific provisions on documentation submitted to apply, procedures for registration of transactions through the Upcom system; listing or complementary transaction registration.” 

18. Amending Point b Clause 2, Point g Clause 4 in Article 57 as follows:

“b) The original copy of the Decision granted by the General Meeting of Shareholders on approval for the share listing or the decision granted by competent authorities on approval for the equitization project (in the event of listing of stocks of state-owned enterprises carrying out equitization operations);”

g) The original copy of the report on investment portfolios of the securities investment fund or company at the time of listing registration with endorsement given by the supervisory bank. As for the registration of listing of fund certificates for portfolio swaps, the contract to use stock indices and contracts with fund founders must be additionally provided.”

19. Amending Point b Clause 2 Article 59 as follows:

“b) The duplicate of the Certificate of registration of securities offering or other documents issued by the State Securities Commission in case of additional stock issue.”

20. Amending Point e Clause 1, Point a Clause 2, Clause 4 in Article 60 as follows:

“1. Securities shall be delisted under the following circumstances:

e) The listed organizations ends its operations or fails to meet listing requirements due to merger, acquisition, division, splitting, dissolution or bankruptcy, or is subject to the issuing company’s offering and issue of more than 50% of outstanding shares for the purpose of swapping them for shares or contributed capital in other enterprises; the securities investment fund terminates its operations; the listed organization fails to meet statutory requirements for becoming a public company;"

“2. Securities shall be delisted if the listed organization requests the delisting and fully meets the following requirements:

a) Requirements for delisting:

- The General Meeting of Shareholders has voted for the delisting decision in compliance with enterprise laws in which at least 51% of votes for this is obtained from shareholders who are not major shareholders;

- The delisting shall be implemented after at least 02 years from the date on which the listing was implemented at the Stock Exchange;”

“4. Stocks of the company carrying out the delisting but still meeting requirements for becoming a public company must be registered for transactions through the Upcom system immediately after the delisting. Process and procedure for the delisting of shares, registration of share transactions through the Upcom system, and the delisting of investment fund certificates or shares of the securities investment company, shall be implemented under the instructions of the Ministry of Finance."  

21. Amending Clause 9, adding Clause 11, 12, 13 in Article 71 as follows:

“9. Foreign investors shall be entitled to be established, buy shares, contributed capital for the purpose of unrestricted ownership of the charter capital of the securities trading organization according to the following rules:

a) If foreign investors are organizations meeting requirements stipulated in Clause 10 of this Article, they shall be entitled to buy shares with the aim of taking the whole ownership of the charter capital of a securities trading organization, and to found the securities trading organization with wholly foreign-owned financing.     

If foreign investors are organizations failing to meet requirements stipulated in Clause 10 of this Article, or if they are individual investors, they shall be entitled to hold less than 51% of the charter capital of a securities trading organization;  

b) Foreign investors must comply with regulations laid down in Point c Clause 7 (applicable to securities companies), and Point c Clause 8 of this Article (applicable to fund management companies).”

“11. A securities trading organization shall be allowed to issue shares to increase their assets from the capital surplus generated through stocks offerings or issues, or due to the differential between selling price and cost incurred from the purchase of fund stocks; or from retained profits and other legal financing in the owner’s equity.

a) Issuing stocks to increase assets from the capital surplus due to the difference between the face value and selling price in stock offerings or issues shall be allowed after one year from the end date of the latest offering or issue.   Issuing stocks from the capital surplus due to the difference between the selling price and the cost incurred from the purchase of fund stocks shall be allowed after fund stocks have been sold out;

b) As for issue of stocks for the purpose of increasing capital from retained profits and other legal capital sources in the owner's equity, the company shall be allowed to do so only when there is none of accrued loss and the company ensures that they have adequate realized assets after setting aside investment provisions, provisions for doubtful debts and other provisions in accordance with applicable regulations.

12. Any securities company shall be allowed to sell covered warrants provided that it meets the following requirements:

a) It has none of accrued loss, and its charter capital and owner's equity equal to at least VND 1,000 billion or more according to the audited annual financial statement issued in the latest year and the reviewed mid-year financial statement in the latest reporting period;

b) It has been issued with required permits for securities trading transactions;

c) It has provided underlying margins or sums used for securing payment obligations for the offering at a depository bank which is not an associate;

d) It is not subject to any warning, operational cessation, suspension, or a merger, acquisition, dissolution or bankruptcy in progress;  

dd) The preceding-year financial statement audited by authorized auditors without any exception.

13. The offering of covered warrants must be approved by the State Securities Commission before commencement.  Application, process and procedure for the offering of covered warrants, margin levels, underlying securities, criteria for liquidation, market capitalization, percentage of freely-assigned underlying stocks, scale of offerings and financial activity ratios of the underlying securities issuing organization, shall adhere to the instructions of the Ministry of Finance."

22. Adding Article 90a coming after Article 90 as follows:

“Article 90a. Contribution of real property to the owner's equity of the real estate investment fund

1. The investor who contributes their real property to the owner’s equity must meet the following requirements to found the real estate investment fund or increase the charter capital of the real estate investment fund:

a) Real property must satisfy requirements set out in the rules and regulations of the fund, and conform to investment objectives and policies of the fund;

b) Real property is legally owned by investors, not subject to any restriction on the assignment of the ownership or tenure of the real property to be contributed to the fund; is not pledged, mortgaged and collateralized assets, or is not blocked or is not associated with any other collateral transaction according to regulations enshrined in the civil legislation as well as meets regulations laid down in Clause 2 Article 91 hereof;

2. Documentation submitted to apply for the public offering of fund certificates in case of contribution of real property to the owner’s equity by investors shall be composed of the followings:

a) The original Certificate of the public offering of fund certificates;

b) The fund’s rules and regulations;

c) The original prospectus and summary prospectus;

d) The agreement in principle on depository and supervisory operations signed with the supervisory bank; the agreement in principle on valuation operations signed with the valuer (if any); the agreement on real estate management signed with the real estate management organization; the agreement in principle on distribution of fund certificates signed between the fund management company and distributors;  

dd) The original list of investors contributing their real property to the owner’s equity and fund founders (if any), enclosing the written consensus on contribution of real property for establishment of the real estate investment fund under which the value of contributed assets is agreed, and the following materials:

- The authenticated copy of the establishment decision, the business registration certificate or other equivalent materials held by institutional investors; the valid copy of the identification card or citizen identification card held by individual investors;  

- The original copy of the meeting minutes, resolution of the General Meeting of Shareholders and the Managing Board or the Board of Members, or the decision of the owner of the capital contribution organization in conformity with provisions laid down in the corporate rules or regulations on contribution of assets to the real estate investment fund, and commitment on conformance to regulations on restrictions on assignment of fund certificates;   

- The duplicate copy of materials proving the investor’s right to ownership, use of real property in accordance with legal regulations on real estate business, laws on houses and laws on lands;

e) The original copy of the latest annual financial statement which has been audited by independent auditors or the report of the real estate management organization on operation and utilization of real estate in the latest year with endorsement given by independent auditors and other reports compiled in the latest quarter;

g) The original copy of certificates of real estate value issued by two (02) independent valuers;

h) Personal records of professionals working for the real estate fund management division according to the instructions of the Ministry of Finance;

k) Securities underwriting commitment (if any).

3. Documentation submitted to apply for the offering, issue of fund certificates for the purpose of increasing assets of investors contributing real property to the owner’s equity shall include the following materials:

a) Materials stipulated in Point a, b, c, dd, e and g Clause 2 of this Article;

b) The original copy of the meeting minutes and resolution of the general meeting of investors on approval for the additional offering of fund certificates for the purpose of increasing the owner’s equity of the fund, and approval for the plan to issue shares and use assets. The meeting minutes and resolution of the Board of Directors of the fund on approval for the following contents such as issue records, time, price of issued fund certificates, criteria for determination of investors and specific target investors in the event that rights to purchase fund certificates to be issued as planned are not totally distributed;

c) The original financial statement in the year preceding the year of issue of the fund certificate which has been audited by the authorized auditor;

d) The original copy of the report on the result of valuation, revaluation and the certificate of value of current real estate of the fund, and the report on the net asset value with endorsement given by the supervisory bank at the application submission time.

4. Valuation of the real property contributed to the real estate investment fund must be conducted by an independent valuer in accordance with legal regulations on valuation, legislation on real estate business and other relevant laws. Such valuation shall not be carried out within a period of less than six (06) months that ends on the date on which the application for the offering and issue of fund certificates is submitted. With regard to establishment of the fund, the value of the contributed asset must be approved by all of investors contributing their real property to the owner’s equity and founding members (if any).  With regard to an increase in the charter capital of the fund, the value of contributed capital must be approved by the General Meeting of investors.

If the real property contributed to the fund is valuated to have the value higher than the actual value at the capital contribution time, investors contributing their real property to the owner’s equity shall jointly make more contributions equal to the difference between the value determined after valuation and the actual value of the contributed real property at the time of valuation completion; shall concurrently have joint responsibility for any loss incurred by the intentional valuation in which the value of the contributed real property is higher than the actual value. 

5. The transfer of the right to own and use real property from investors to the fund shall be carried out under the provisions of laws on enterprises and other relevant laws.”

23. Amending, supplementing Point a, dd Clause 1 Article 91 as follows:

“ Article 91. Investment activities of the real estate investment fund

1. The real estate investment fund must ensure that:

a) At least 65% of the net asset value of the fund is invested in the real property in Vietnam to serve the purpose of lease or operation to earn stable dividends and conform to regulations laid down in Clause 2 of this Article, and shares of the issuing company being the real estate business organization gaining revenue or income from the ownership, leasing and trading of real property which make up at least 65% of total revenue or income (hereinafter referred to as the real estate company);

dd) Not more than 35% of the net asset value of the fund is invested in currency and equivalent currency instruments, valuable papers and negotiable instruments under the bank legislation, Government bonds or Government-backed bonds, listed securities, those registered for transactions, exclusive of investments in shares of the real estate company.  Investment in these assets shall be subject to the following restrictions:

- Do not invest more than 5% of total asset value of the fund in stocks issued by the same organization, except for Government bonds;

- Do not invest more than 10% of total asset value of the fund in stocks issued by a group of companies associated with parent companies, subsidiary companies and associate companies;

- Do not purchase more than 10% of total outstanding stocks issued by the same issuing company;”

24. Abolishing Article 3, Article 8, Clause 1 and Clause 4 Article 23, Point i Clause 1 Article 60, Point b Clause 10 Article 71, Clause 4 Article 77.

Article 2. Implementary provisions

1. This Decree shall come into force from September 1, 2015.

2. It shall abolish the Prime Minister’s Decision No. 55/2009/QĐ-TTg dated April 15, 2009 on the rate of foreign investors’ participation on Vietnam's securities exchange market.

Article 3. Implementation

1. The Ministry of Finance shall take responsibility to provide guidance on implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of central-affiliated cities and provinces, shall be responsible for implementing this Decree./.

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