Chương 4 Nghị định 58/2012/NĐ-CP: Chào mua công khai

Chapter 4.

TENDER OFFER

Article 40. Principle of tender offer

The tender offer of stocks of the public company or closed-end depository certificate must ensure the following principles:

1. The tender offer conditions are applied fairly to all shareholders of the target company or the investor of the targeted investment fund.

2. The parties involved in the tender offer are provided sufficient information to reach the proposal to purchase shares and closed-end fund certificate.

3. Respecting self-determination right of the shareholders of the target company or the investor of the targeted investment fund.

4. Complying with regulations of the law on securities and securities market and other relevant laws;

5. The party making tender offer must appoint a securities company as an offering agent.

Article 41. Cases of tender offer

1. The cases of tender offer as prescribed in clause 11, Article 1 of the Law amending and supplementing some articles of the Securities Law.

2. In addition to the cases prescribed in Clause 11, Article 1 of the Law amending and supplementing some articles of the Securities Law, the organization and individual intending to make a tender offer for stock of the public company or closed-end fund certificate must fully implement the provisions of this Decree.

Article 42. Registration dossier of tender offer

The registration dossier of tender offer includes:

1. Certificate of registration of tender offer under the form regulated by the Ministry of Finance.

2. The decision of the General Meeting of Shareholders or the Board of Directors (for joint stock company), the Board of members or company’s owner (for limited liability company), the General Meeting of Investors (for member fund) has approved the tender offer.

3. The decision of the General Meeting of Shareholders in case the public company redeems its own stock in order to decrease the charter capital.

4. The Financial statement audited of the preceding year and documents verifying the financial capacity under the specialized law or certifying the financial capacity for individual and organization that make tender offer.

5. The document proving the company is eligible for redemption of stock in case the public company redeems its own stock in the form of tender offer.

6. The publication of information on tender offer under the form prescribed by the Ministry of Finance

7. Cerrtificate of capital escrow at the custodian bank for the case of tender offer of closed-end fund certificate.

Article 43. Registration of tender offer.

1. Organization and individual making tender offer of stock of public company or closed-end fund certificate must send the registration document of tender offer to the State Securities Commission. The registration document of tender offer must be simultaneously sent to the target company, fund management company. Within 03 days after receiving the registration document of tender offer, the target company, Fund Management Company managing  the targeted are obliged to publish information on receiving the proposal of tender offer on the means ofpublication of information of the company and Stock Exchange where the target company or targeted investment fund are listed.

2. Within 15 days after receiving the registration document of tender offer, the State Securities Commission must give its opinion in writing. If the dossier is incomplete and explicit, the organization and individual registering the tender offer must supplement and amend as required by the State Securities Commission.

3. Within 15 days from the date the State Securities Commission sends a written request to organization and individual for amendment and supplementation of the registration document of tender offer, the organization and individual must complete the dossier as required and send it to the State Securities Commission. If exceeding the time limit, the organization or individual does not make the supplementation and amendment, the State Securities Commission shall stop considering that registration document of tender offer

Article 44. Responsibilities of the Board of Directors of the target company or representative Board of targeted investment fund.

1. Within 10 days after receiving the registration document of tender offer, the Board of Directors of the target company or Fund Management Company managing investment fund must send it to the State Securities Commission and make announcement to the shareholders or investors in order to know the opinion of the target company, the representative Board of targeted investment fund for the tender offer proposal. Documents sent to the State Securities Commission must be expressed in the form of documents and electronic data as prescribed by the State Securities Commission.

2. The opinion of the Board of Directors of the target company or the representative Board of targeted investment fund must be expressed in wrting with the signature of majority of members of the Board of Directors or the representative Board of fund for the tender offer of stock or closed-end fund certificate. In case the opinion of the members of the Board of Directors or representative Board of fund is different from the assessment of the Board of Directors or representative Board of fund, the parties concerned must make announcement attached to this opinion.

Article 45. Responsibilities of the information knower on the tender offer.

Member of the Board of Directors, Director (General Director), Deputy Director (Deputy General Director), chief accountant, major shareholders and persons concerned of the organization of tender offer, the target company or Fund Management Company managing the targeted investment fund, member of representative Board of the targeted investment fund, employee of securities company and other people knowing the information on the tender offer are not permitted to take advantage of the knowing of information to purchase or sell securities for themselves and provide information, incite, entice people to purchase and sell securities before the point of time of official tender offer.

Article 46. Prohibited acts for the tender offeror

1. From the point of time of sending the registration document of tender offer to the State Securities Commission to the time of completion of a tender offer, the tender offeror is not permitted to perform the following acts:

a) Directly or indirectly purchasing or committing to purchase stocks, stock option and convertible bond of the target company or fund certificate of the targeted investment fund, the right to purchase fund certificate of the targeted investment fund outside the batch of tender offer.

b) Selling or committing to sell stocks and closed-end fund certificate that the tender offeror is making the offer.

c) Unfairly treating with those who own the same type of stock, share option and convertible bonds or closed-end fund certificate that are offered for purchase;

d) Providing specific information to shareholders or investors at different level or not at the same time;

dd) Refusing to purchase stock of the target company or fund certificates of the investor of the targeted investment fund during the process of tender offer;

e) Purchasing stock of the target company or the fund certificate of the targeted investment fund contrary to provisions published in the Registration of tender offer;

2. The foreign investor is not permitted to perform the tender offer for public company or the closed-end fund certificate in order to own the number of share or closed-end fund certificate in excess of the ownership of the foreign investor as prescribed by the law.

Article 47. Obligation of the securities company as the tender offer agent

1. Guiding the offering organization and individual to make a tender offer in accordance with provisions in this Decree and take joint responsibility in case organization and individual violate the provisions of this Decree and other relevant legal documents, except where the party making tender offer deliberately conceals information or falsifies dossier, documents and implement acts of violation beyond the control of the tender offer agent.

2. Acting as agents to receive order to sell stock or closed-end fund certificate and transfer stock and closed-end fund certificate to the tender offeror within the time limit specified in the Registration of tender offer;

3. Ensuring the organization and individual making the tender offer to having adequate money to make a tender offer at the time the official tender offer under registration.

Article 48. Principle to determine the tender offer price

1. The tender offer price of stock of public company or closed-end fund certificate is determined by the following principles:

a) Where the target company is a listing organization or a trading registration organization, the rate of tender offer price must not be lower than the average reference price of stock of the target announced by Stock Exchange published within 60 days preceding the date of submitting the Registration of tender offer and not lower than the highest purchasing price of organization and individual making a tender offer for the stock of the target company during this time;

b) Where the target company is is a listing organization or a trading registration organization, the tender offer price must not be lower than the average stock price of target companies and is regularly quoted by at least two (02) securities companies within 60 consecutive days preceding the date of submitting the Registration of tender offer or stock offer price in the latest issue of the target company and not lower than the highest purchasing price of organization and individual making a tender offer for the stock of the target company during this time;

c) The rate of tender offer price of fund certificate must not be lower than the average reference price of that fund certificate announced by Stock Exchange published within 60 days preceding the date of submitting the Registration of tender offer and not lower than the highest purchasing price of organization and individual making a tender offer for the fund certificate of the targeted investment fund during this time;

2. During the process of tender offer, the tender offeror is only permitted to increase the tender offer price. The price increase is made on the condition the offeror must announce the price increase at least 07 days prior to the completion of a tender offer and ensure this higher price is applicable to all shareholders of the target company or the investors of the targeted investment fund including the shareholders or investors who accept to sell to the offeror.

Article 49. Withdrawing tender offer proposal

1. After announcing the tender offer, the offeror may withdraw the tender offer proposal in the cases that have been stated in the Registration of tender offer as follows:

a) Number of stock or closed-end certificate registered for selling does not meet the minimum rate that the offeror has announced in the Registration of of tender offer;

b) The target company increases or decreases the number of voting stocks through split or consolidation of stock or conversion of preference shares;

c) The target company decreases its equity capital

d) The target company issues additional securities or the targeted investment fund issues the fund certificate to raise the fund’s charter capital;

dd) The target company sells all or part of the assets or the company’s operating part.

2. The tender offeror must report to the State Securities Commission on the withdrawal of tender offer proposal for the target company or targeted investment fund and to publicize the withdrawal of the tender offer proposal on one (01) online newspaper or one (01) newspaper in three (03) consecutive issues after the approval of the State Securities Commission.

Article 50. Tender offer trading

1. Within 07 days from the date of receiving the opinion of the State Securities Commission, the tender offeror must publicly announce the tender offer on one (01) online newspaper or one (01) newspaper in three (03) consecutive issues. The tender offer is made only after the State Securities Commission has approved in writing the tender offer registration and has been announced by the organization and individual by the method mentioned above.

In case the target company is a listing organization or a trading registration organization in the concentrated securities market or the targeted investment fund, the organization or individual making the tender offer must simultaneously announce on the means of information publication of the Stock Exchange where the stocks of the target company are listed or registered for trading or the fund certificates of the targeted investment fund are listed.

2. The tender offeror must appoint a securities company as an agent to make the tender offer. The State Securities Commission shall guide the process for the securities company to perform the technique of the tender offer agent.

3. The time to make a batch of tender offer is not shorter than 30 days and not longer than 60 days after the tender offer is officially defined in the Registration of tender offer sent to the State Securities Commission.

4. The shareholders of the target company or the investor of the targeted investment fund approving the tender offer proposal may withdraw the tender offer proposal in the time of tender offer when the conditions of tender offer are changed or there are other organizations and individuals to make competitive tender offers for the share of the target company or fund certificate of the targeted investment fund

5. Where the number of stocks or the closed-end fund certificates offered is smaller than the number of stocks or the closed-end fund certificates registered for sale, the number of stocks or the closed-end fund certificates purchased on the basis of proportion to the number of stocks that each shareholder of the target company or the number of closed-end fund certificates which the investors register the selling and ensure a fair rate of price to all shareholders or investors.

Article 51. Continuation of the tender offer

Except for the case the tender offer has been made for all of the stocks or the outstanding voting closed-end fund certificates, after making a tender offer, tender offer subject holding 80% or more of the number of stocks or closed-end fund certificates in circulation of a public company or closed-end fund must continue to purchase the remaining number of stocks or certificates of closed-end fund certificates within 30 days as prescribed in Clause 11, Article 1 of the Law amending and supplementing some articles of the Securities Law on the conditions on prices and payment method similar to the batch of tender offer..

Organization and individual making tender offer must notify the State Securities Commission of the continuation of the tender offer within 05 working days from the end date of the tender offer while making the publication of information on the continuation of the tender offer under the provisions of the Securities Law.

Article 52. Making report and publication of information on the result of tender offer.

Within 05 days from the end date of the tender offer, organization or individual making the tender offer shall send the report of tender offer result to the State Securities Commission while making the publication of information on mass media including the website of Stock Exchange in case the stock and closed-end fund certificate publicly offered are listed at Stock Exchange. The report of tender offer result is made under form prescribed by the Ministry of Finance.