Chương 3 Nghị định 58/2012/NĐ-CP: Công ty đại chúng

Chapter 3.

PUBLIC COMPANY

SECTION 1. REGISTRATION AND DEREGISTRATION OF PUBLIC COMPANY

Article 33. Dossier of public company

Dossier of public company includes:

1. The company charter as prescribed by the enterprise law

2. The certified copy of the Certificate of Business Registration.

3. Brief information about the business organization model, managerial machine and shareholder structure prepared under Form No.08 in the Appendix issued together with this Decree.

4. The Financial statement of the nearest year audited by an independent auditing firm.

Article 34. Public company registration

1. Except for cases specified at Points a and b, clause 1, Article 25 of the Securities Law, a public company shall submit the registration dossier of public company to the State Securities Commission within 90 days day from the date of becoming a public company.

2. Within 07 days after receiving the valid dossiers, the State Securities Commission shall announce the name, business content and other information related to the public company on the media of the State Securities Commission.

3. The date of becoming a public company is from the date of completion of the capital contribution in full and the number shareholders recorded in the number of shareholders with 100 or more investors.

Article 35. Announcing the information on public company registration.

1. Within 07 days after the Securities Commission of State announces the name of the public company under the Clause 2, Article 34 of this Decree, the public company shall announce the information on a (01) central paper or a (01) local newspaper where the head office is registered.

2. A summary of the information on the model of business organization, the management machine and shareholding structure prepared under the Form No.08 in the Annex issued together with this Decree; the company charter and the financial statements must be published on the company’s website.

Article 36. Deregistration of public company

1. The public company is responsible for notifying the State Securities Commission within 15 days from the date of not meeting the conditions as a public company as prescribed in Article 25 of the Securities Law.

The date when the company does not meet the condition as a public company is the day the charter capital is inadequately contributed VND 10 billion on the latest financial statement audited or the number of shareholders lower than 100 people according to the confirmation of the securities depository Center or the number of shareholders or both conditions.

2. Except for the case the company does not meet the condition as a public company by consolidation, merger, bankruptcy, dissolution or transformation of the enterprise model or owned by another organization or individual and after 01 year from the date of failing to meet the conditions as a public company, the State Securities Commission shall consider the deregistration of the public company.

3. The company must fully implement the provisions relating to public company to the time the State Securities Commission announces the cancellation of the public company registration.

4. After receiving the announcement of the State Securities Commission of the cancellation of the public company registration, the company shall notify the cancellation of the public company registration on one (01) central newspaper, one (01) local newspaper where the head office is registered and on the company’s website.

Section 2. REDEMPTION OF STOCK AND SELLING OF TREASURY STOCK OF PUBLIC COMPANY

Article 37. Condition for stock redemption

1. The public company redeeming its own stock as treasury stock must satisfy the following conditions:

a) There is approving decision of the General Meeting of Shareholders for the case of redemption of over 10% of ordinary share or over 10% of the total share with preferred dividend issued or there is approving decision of the Board of Directors for the case of redemption of no more than 10% of the total ordinary share in every 12 months or no more than 10% of the total share with preferred dividend issued every 12 months;

b) There are sufficient resources to redeem stock from the following sources: the equity capital surplus or development investment fund or undistributed profit after tax or other owner’s equity sources used to redeem shares as prescribed by law;

c) There is an plan to redeem stock approved by the Board of Directors in which clearly stating the execution time and principle of price assessment;

d) There is a securities company appointed to perform the trading;

dd) The public company redeeming ordinary stock and making the number of treasury stock to reach 25% of the total outstanding stock of the same type of the company must make a tender offer;

e) Meeting the condition prescribed by specialized law in case of public company in the conditioned business area and sector;

2. The redemption of share is exempted from the provisions of Clause 1 of this Article in the following cases:

a) Redeeming stock at the request of shareholders as stipulated in Article 90 of the Enterprise Law;

b) Redeeming individual share under the plan to issue share to pay dividend, issue stock from owner’s equity shall comply with the guidance in this Decree;

c) The securities company  redeems its own stock in order to fix their own trading in accordance with regulation of the State Securities Commission.

Article 38. Prohibited cases of redemption of stock used as treasury stock

1. The company is not entitled to redeem the stocks used as treasury stock in the following cases:

a) Being in overdue debt based on the latest financial statement audited. The case the estimated point of time for redemption of stock is the point of time after June 30 annually, the determination of overdue debt is based on latest semi-annual financial statement audited and examined;

b) Being in the process of stock offering to raise additional capital;

c) The company’s stock is subject to tender offer.

d) Having performed the redemption of stock within 06 months except for the following cases:

dd) Redemption of stock and selling treasury stock in the same batch.

2. Except where the redemption is made in proportion to each shareholder's ownership percentage or where the company makes ​​a tender offer for stock already issued, the company may not purchase shares of the following subjects used as treasury stock:

a) The company manager and the relevant persons as prescribed in the Securities Law;

b) The shareholder with transfer restriction prescribed by law and company charter;

c) The major shareholder as prescribed in the Securities Law;

Article 39. Condition for selling of treasury stock

1. The public company can only sell treasury stock after 06 months from the end of the nearest redemption, except where the treasury stock is sold or used as bonus stock to employee in the company or the securities company redeems its own share to fix the trading.

2. Having a decision of the Board of Directors to approve the plan of specific selling in which specifying the period of implementation, principle of price determination.

3. Having a securities company appointed to perform the trading.

4. In case of the sale of treasury stock in the form of offering securities to the public, the public company shall comply with regulations on the offering of securities to the public.