Procedures for Acquisition
(in case the acquirer is a CO., LTD with 2 or more members)
*Legal grounds:
Law on enterprises No. 68/2014/QH13 issued by the National Assembly dated November 26, 2014 (“the 2014 Enterprise Law”)
Decree No. 78/2015/ND-CP issued by the Government dated September 14, 2015 on enterprise registration (“Decree No. 78/2015/ND-CP”)
Circular No. 02/2019/TT-BKHDT issued by the Ministry of planning and investment dated January 08, 2019 on amendments to the Circular No. 20/2015/TT-BKHDT dated December 01, 2015 by the Ministry of planning and investment providing guidance on enterprise registration (“Circular No. 02/2019/TT-BKHDT”)
Other relevant legal documents.
According to Clause 1, Article 195 of the 2014 Enterprise Law, acquisition is one or some companies ((hereinafter referred to as acquired companies) may be merged into another company (hereinafter referred to as the acquirer) by transferring all assets, legitimate rights, obligations, and interests to the acquirer. After that, the acquired companies shall cease to exist.
1. Documents:
- The acquisition contract;
- The Resolution and meeting minutes that ratify the acquisition contract of the acquirer;
- The Resolution and meeting minutes that ratify the acquisition contract of the acquired companies, unless the acquirer is a member/ partner or shareholder that holds more than 65% of charter capital or voting shares of the acquired company;
- The valid copies of the Business Registration Certificate or other equivalent documents of the acquirer and the acquired companies;
- Notice of changes in business registration information (Appendix II-1, Circular No. 02/2019 / TT-BKHDT);
- Notice of supplementation and update of business registration information (Appendix II-5, Circular No. 02/2019 / TT-BKHDT);
- List of members of limited liability company (LLC/ CO., Ltd) with two or more members (Appendix I-6, Circular No. 02/2019 / TT-BKHDT).
2. Procedures:
- Relevant companies shall prepare the acquisition contract and draft the charter of the acquirer.
Members, the owners, or shareholders of each of relevant companies shall ratify the acquisition contract, charter of the acquirer, and apply for registration of the acquirer as prescribed by the 2014 Enterprise Law.
- The acquisition contract shall be sent to all creditors and notified to all employees within 15 days from the ratification date.
- After business registration, the acquired companies shall cease to exist; the acquire shall inherit the lawful rights and interests as well as unpaid debts, employment contract, and other liabilities of the acquired companies.
- If after the acquisition, the business registration content of the acquirer does not change, within 10 working days from the date of completion of the acquisition, the acquirer shall send the notice of supplementation and update of business registration information (in the form prescribed in Appendix II-5 of Circular No. 02/2019 / TT-BKHDT) to the Business Registration Office where acquirer is headquartered to implementing an end of the acquired company. The notice must contain the documents prescribed in Clause 4, Article 195 of the 2014 Enterprise Law.
(as prescribed in Article 28, Article 195 of the 2014 Law on Enterprises and Article 24 of Decree No. 78/2015 / ND-CP)
3. Number of files: 01 (set) (Article 9 of Decree No. 78/2015/ND-CP)
4. Agencies receiving and processing dossiers:
Business Registration Office where the acquirer is headquartered (Article 27 of Decree No. 78/2015/ND-CP)
5. Duration:
Within 03 (three) working days from the date of receipt of valid file (Article 28 of Decree No. 78/2015/ND-CP)
6. Fees:
- VND 100,000 / time for direct application at Business Registration Office (Submit at the time of applying).
- Exempting fees for online registration documents (Clause 3, Article 5 of Circular No. 47/2019 / TT-BTC)
*Note:
- If the acquirer has 30% - 50% of the market share, legal representatives of the companies shall notify the competition authority before initiating the acquisition process, unless otherwise prescribed by the Law on competition.
- Acquisition is prohibited if the acquirer has more than 50% of the market share after acquisition, unless otherwise prescribed by the Competition Law.
1. “Acquisition contract’ must contain the acquirer’s names, headquarter addresses; the acquired company’s name and headquarter address; procedures and conditions for acquisition; employment plan; time limit and procedures for transferring assets, stakes, shares, bonds of the consolidating companies to the acquirer; time limit for acquisition. (Point a Clause 2 Article 195 of the 2014 Enterprise Law)
2. “Relevant market” means the market of those products and/or services that are regarded as interchangeable by reason of their characteristics, intended use and prices in a specific geographical area with homogeneous conditions of competition, which is considerably differentiated from neighboring geographic areas. (Clause 7 Article 3 of the 2018 Competition Law)
