Thông tư 118/2020/TT-BTC hướng dẫn nội dung về chào bán, phát hành chứng khoán, chào mua công khai, mua lại cổ phiếu, đăng ký công ty đại chúng và hủy tư cách công ty đại chúng do Bộ trưởng Bộ Tài chính ban hành

CIRCULAR

PROVIDING GUIDANCE ON OFFERING AND ISSUANCE OF SECURITIES, TENDER OFFER, SHARE REPURCHASE, REGISTRATION AND DELISTING OF PUBLIC COMPANIES

Pursuant to the Law on Securities dated November 26, 2019;

Pursuant to the Law on Enterprises dated June 17, 2020;

Pursuant to the Government’s Decree No. 87/2017/ND-CP dated July 26, 2017 defining functions, tasks, powers and organizational structure of the Ministry of Finance;

Pursuant to the Government's Decree No. 155/2020/ND-CP dated December 31, 2020 on elaboration of some Articles of the Law on Securities;

At the request of the Chairman of the State Securities Commission of Vietnam (“SSC”);

The Minister of Finance promulgates a Circular providing guidance on offering and issuance of securities, tender offer, share repurchase, registration and delisting of public companies.

Section I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidance on the following:

1. The model prospectus used in public offering or issuance of shares for swap;

2. The model notice of offering, issuance of securities, tender offer;

3. The model report on results of the offering or issuance of securities, or tender offer;

4. The model information disclosure statement about the public company; application for registration of the public company after full or partial division, consolidation or merger; delisting of the public company in case of reorganization, dissolution or bankruptcy;

5. Share repurchase by a public company.

Article 2. Regulated entities

This Circular applies to:

1. Issuers;

2. Public companies;

3. Shareholders of public companies that offer shares to the public;

4. Securities companies;

5. Vietnam Stock Exchange and its subsidiaries (hereinafter referred to as “VNX”), and Vietnam Securities Depository and Clearing Corporation (VSDCC);

6. Relevant authorities, organizations and individuals.

Section II

MODEL PROSPECTUS, MODEL NOTICE AND MODEL REPORT USED IN OFFERING, ISSUANCE OF SECURITIES, AND TENDER OFFER

Article 3. Model prospectus

1. The issuer, when applying for registration of public offering or issuance of shares for swap, or shareholders of the public company, when applying for registration of public offering, shall prepare a prospectus using one of the following model prospectuses:

a) Model prospectus for initial public offering in Appendix No. 01 enclosed herewith;

b) Model prospectus for follow-on offering of the public company in Appendix No. 02 enclosed herewith;

c) Model prospectus for public offering of shareholders of the public company in Appendix No. 03 enclosed herewith;

d) Model prospectus for initial public offering for conversion of a limited liability company into a joint stock company in Appendix No. 04 enclosed herewith;

dd) Model prospectus for public offering of bonds in Appendix No. 05 enclosed herewith;

e) Model prospectus for public offering of convertible bonds or warrant-linked bonds of the public company in Appendix No. 06 enclosed herewith;

g) Model prospectus for follow-on offering of the public company after restructuring, consolidation or partial division in Appendix No. 07 enclosed herewith;

h) Model prospectus for public offering of bonds after restructuring, consolidation or partial division in Appendix No. 08 enclosed herewith;

i) Model prospectus for public offering of convertible bonds or warrant-linked bonds of the public company after restructuring, consolidation or partial division in Appendix No. 09 enclosed herewith;

k) Model prospectus for issuance of shares of the public company for tender offer in Appendix No. 10 enclosed herewith;

l) Model prospectus for issuance of shares for swap under the consolidation contract in Appendix No. 11 enclosed herewith;

m) Model prospectus for issuance of shares of the public company for swap under the merger contract in Appendix No. 12 enclosed herewith;

2. A model prospectus specified in Clause 1 of this Article shall, inter alia, contain the following information:

a) Information about persons who bear primary responsibility for the prospectus;

b) Information about risk factors;

c) Information about the issuer or the public company whose shares are offered, including its establishment, organizational structure, relevant companies, and business operations;

d) Information about founding shareholders, major shareholders, and owner of the company; company’s president, members of Board of Directors, members of Board of Members; Controllers; General Director (Director), Deputy General Directors (Deputy Directors) and Chief Accountant;

dd) Information about business performance, financial status and plans;

e) Information about the offering or issuance, including characteristics of securities offered or issued; distribution method; distribution schedule; cases of cancellation of the offering;

g) Information about purposes of the offering or issuance; plan for use of capital generated by the offering, except the initial public offering made to become a public company through change of ownership structure without increase in charter capital of the issuer, and the public offering of shareholders of the public company;

h) Information about partners related to the offering or issuance, including counseling organization, underwriter, distribution agent, representative of bond holders, and audit organization;

i) Other important information that might affect investors’ decisions;

k) Signatures of the persons who bear primary responsibility for the prospectus as prescribed in Clause 3 Article 19 of the Law on Securities;

l) List of documents enclosed with the prospectus, including decisions issued by the General Meeting of Shareholders or Board of Directors or Board of Members or company’s owner related to the offering or issuance, financial statements as prescribed in Article 20 of the Law on Securities, documents about the project using capital generated by the offering and other documents (if any).

3. When preparing the prospectus using the model prospectus specified in Clause 1 of this Article, the issuer must comply with the following provisions:

a) The prospectus must contain clear, accurate, truthful and adequate information that might affect investors’ decisions. The language of the prospectus must be simple and understandable. The abbreviated or technical terms used in the prospectus must be clearly interpreted;

b) Important and comparative information contained in the prospectus must be provided with their reference sources;

c) The prospectus must have a clear format, and easily legible font and font size;

d) The analysis of risk factors must include their impacts on business operations, financial status and business performance of the issuer; the offering or issuance; prices of securities; and the project using capital generated by the offering. Such risk factors must be classified and named in groups, and sorted by their negative effects in descending order;

dd) Information about business operations and financial status must clearly reflect business operations of the issuer or public company whose shares are offered within the latest 02 fiscal years and by the end of the latest quarter. In case of a parent company, the information about business performance must include consolidated business performance and business performance of the parent company;

e) Information about major shareholders, owner of the company, company’s president, members of Board of Directors, members of Board of Members, Controllers, General Director (Director), Deputy General Directors (Deputy Directors) and Chief Accountant must include information about their interests relevant to the issuer or shareholders of the public company that offers shares to the public;

g) Purposes of the offering or issuance and plan for use of capital generated by the offering must be conformable with the plan approved by the General Meeting of Shareholders or Board of Directors or Board of Members or the company’s owner;

h) If a prospectus is revised, revised contents and revision reasons must be indicated in the revised prospectus.

Article 4. Model notice of offering, issuance of securities, and tender offer

1. The model notice of the public offering of shares is provided in Appendix No. 13 enclosed herewith;

2. The model notice of the public offering of bonds is provided in Appendix No. 14 enclosed herewith;

3. The model notice of issuance of shares of the public company for tender offer is provided in Appendix No. 15 enclosed herewith;

4. The model notice of issuance of shares for swap under the consolidation or merger contract is provided in Appendix No. 16 enclosed herewith;

5. The model notice of issuance of shares for paying dividends or increasing share capital from equity is provided in Appendix No. 17 enclosed herewith;

6. The model notice of issuance of shares under an employee stock ownership plan is provided in Appendix No. 18 enclosed herewith;

7. The model notice of issuance of shares for exercise of rights under warrants is provided in Appendix No. 19 enclosed herewith;

8. The model notice of tender offer is provided in Appendix No. 20 enclosed herewith.

Article 5. Model reports on results of the offering or issuance of securities, and tender offers

1. The model report on results of the public offering of shares is provided in Appendix No. 21 enclosed herewith;

2. The model report on results of the public offering of bonds is provided in Appendix No. 22 enclosed herewith;

3. The model report on results of the private placement of shares or warrant-linked preference shares is provided in Appendix No. 23 enclosed herewith;

4. The model report on results of issuance of shares which shall be swapped for shareholders’ shares in other public companies or in non-public joint-stock companies, stakes of members of limited liability companies or debts is provided in Appendix No. 24 enclosed herewith;

5. The model report on results of issuance of shares of the public company for tender offer is provided in Appendix No. 25 enclosed herewith;

6. The model report on results of issuance of shares for swap under the consolidation contract is provided in Appendix No. 26 enclosed herewith;

7. The model report on results of issuance of shares for swap under the merger contract is provided in Appendix No. 27 enclosed herewith;

8. The model report on results of issuance of shares for paying dividends or increasing share capital from equity is provided in Appendix No. 28 enclosed herewith;

9. The model report on results of issuance of shares under an employee stock ownership plan is provided in Appendix No. 29 enclosed herewith;

10. The model report on results of issuance of shares for conversion of bonds is provided in Appendix No. 30 enclosed herewith;

11. The model report on results of issuance of shares for exercise of rights under warrants is provided in Appendix No. 31 enclosed herewith;

12. The model report on results of overseas offering of shares or issuance of shares used as the basis for overseas offering of depositary receipts is provided in Appendix No. 32 enclosed herewith;

13. The model report on results of tender offer is provided in Appendix No. 33 enclosed herewith.

Section III

REGISTRATION AND DELISTING OF PUBLIC COMPANIES

Article 6. Model information disclosure statement about a public company

The model information disclosure statement about a public company is provided in Appendix No. 34 enclosed herewith.

Article 7. Application for registration of a public company after full or partial division, consolidation or merger

An application for registration of a public company after full or partial division, consolidation or merger includes:

1. The documents specified in Points a, b, c, d and e Clause 1 Article 33 of the Law on Securities.

2. The latest annual financial statements of the joint-stock company established after full or partial division or consolidation, which have been audited by an independent audit organization. If the latest annual financial statements are not available at the time of application for public company registration because the company does not yet operate for a full fiscal year, the latest annual financial statements included in the application shall be replaced with the financial statements of the latest period which have been audited b an independent audit organization.

3. The latest annual financial statements of a joint-stock company established after the merger, which have been audited by an independent audit organization.  In case the company established after the merger applies for enterprise registration after the end of the latest fiscal year, the audited financial statements of the latest period are required.

Article 8. Delisting of a public company in case of reorganization, dissolution or bankruptcy

1. Delisting of a public company due to full division, consolidation, merger (the public company is an acquired company), dissolution or bankruptcy:

a) The public company shall submit reports and disclose information about the reorganization, dissolution or bankruptcy in accordance with regulations on disclosure of information on securities market;

b) After the legal status of the public company is updated on the national enterprise registration database or the court issues a decision to declare bankruptcy, SSC shall consider and announce the delisting of the public company on its media.

2. Delisting of a public company in case of revocation of enterprise registration certificate:

a) The public company whose enterprise registration certificate is revoked shall submit reports and disclose information in accordance with regulations on disclosure of information on securities market;

b) SSC shall consider delisting the public company within 180 days from the receipt of the report on the revocation of the enterprise registration certificate;

c) Upon the end of the time limit specified in Point b of this Clause, SSC shall announce the delisting of the public company on its media.

3. Delisting of a public company due to partial division or merger (the public company is the acquiring company):

a) Procedures and application for delisting of a public company in case of partial division or merger (the public company is the acquiring company) shall comply with Article 38 and Article 39 of the Law on Securities;

b) SSC shall notify the public company of its delisting within 15 days from the receipt of its adequate and valid application, and also announce the delisting on its media.

4. Delisting of a public company due to conversion of a joint-stock company into a limited liability company:

a) The public company that is issued with an enterprise registration certificate due to conversion of business type shall submit reports and disclose information in accordance with regulations on disclosure of information on securities market;

b) After receiving reports and information disclosed as prescribed in Point a of this Clause, SSC shall consider and announce the delisting of the public company on its media.

Section IV

SHARE REPURCHASE

Article 9. Reports on share repurchase

1. A public company mentioned in Clause 1 Article 36 of the Law on Securities, before repurchasing its owned shares, shall send the following documents to SSC:

a) A report on the share repurchase made according to the form in Appendix No. 35 enclosed herewith;

b) A decision of the General Meeting of Shareholders to approve the share repurchase and the repurchase plan;

c) A decision of the Board of Directors to approve the share repurchase plan;

d) The document confirming the transaction of the securities company, unless the repurchasing company is a member of VNX;

dd) The latest audited financial statements;

e) Documents proving that the company has sufficient funds to repurchase shares. In case the public company that is a parent company uses share premium, development investment funds or other funding sources to repurchase shares, documents providing such funds are financial statements of the parent company. In case the public company that is a parent company uses undistributed post-tax profits to repurchase shares, the fund for repurchasing shares shall not exceed its undistributed post-tax profits specified in the audited consolidated financial statements. If the fund for repurchasing shares is lower than the undistributed post-tax profits specified in the audited consolidated financial statements but higher than the undistributed post-tax profits specified in the financial statements of the parent company, decisions issued by competent authorities of subsidiary companies to approve the distribution of profits, and statements, bearing the bank’s confirmation, of transfer of profits from subsidiary companies to the parent company are required;

g) Documents proving fulfillment of all conditions for share repurchase if the public company engages in conditional business lines.

2. Before repurchasing its shares as prescribed in Point a Clause 2 Article 36 of the Law on Securities or repurchasing employees’ shares in accordance with the regulations on employee share ownership as prescribed in Point b Clause 2 Article 36 of the Law on Securities, the public company shall send the following documents to SSC:

a) The information disclosure statement about the share repurchase made according to the form in Appendix No. 36 enclosed herewith;

b) A decision of the Board of Directors or General Director (Director) to approve the share repurchase plan.

Article 10. Reporting and disclosing information about share repurchase

1. The public company specified in Clause 1 Article 9 of this Circular shall report, disclose information about the share repurchase, repurchase shares and prepare reports on share repurchase results according to Clauses 3, 4, 5 and 6 Article 37 of the Law on Securities. Information shall be disclosed using the form in Appendix No. 36 enclosed herewith. The report on the share repurchase results shall be made using the form in Appendix No. 39 enclosed herewith.

2. The public company specified in Clause 2 Article 9 of this Circular shall repurchase shares after 07 business days from the day on which the report on share repurchase is sent to SSC, and disclose information about the share repurchase on its website and on the media of SSC and VNX using the form in Appendix No. 36 enclosed herewith. Within 10 days from the completion of the share repurchase, the public company shall send the report on share repurchase results to SSC and publicly disclose information using the form in Appendix No. 39 enclosed herewith.

Article 11. Changes in share repurchase

1. The public company is not allowed to change its intention or plan to repurchase shares as reported and disclosed to the public, except in force majeure events (such as disaster, epidemics, war and other cases) with SSC’s approval.

2. Within 24 hours from the issuance of the decision to make changes in the share repurchase plan, the public company shall send a report on such changes to SSC, and disclose information about the decision to make changes on its website and on the media of SSC and VNX using the form in Appendix No. 37 enclosed herewith.

3. SSC shall give its opinions about changes in the share repurchase plan within 03 business days from the receipt of the company’s report.

4. Within 24 hours after obtaining SSC’s approval for changes in the share repurchase plan, the public company shall disclose information about changes in the share repurchase plan on its website and on the media of SSC and VNX using the form in Appendix No. 38 enclosed herewith.

5. The public company shall make changes in share repurchase after disclosing information as prescribed in Clause 4 of this Article.

Article 12. Repurchasing shares adopting tender offer method

The public company that repurchases its shares adopting tender offer method must comply with regulations on tender offers of shares laid down in the Government’s Decree No. 155/2020/ND-CP dated December 31, 2020, and provide the following documents:

1. The documents specified in Clause 1 Article 85 of the Government’s Decree No. 155/2020/ND-CP dated December 31, 2020;

2. The documents specified in Points dd, e, g Clause 1 Article 9 of this Circular.

Article 13. Reporting and disclosing information about sale of treasury stocks

The public company that repurchases its shares in the case specified in Point b or Point c Clause 7 Article 36 of the Law on Securities shall sell shares as follows:

1. The public company may sell treasury stocks after 24 hours from the time it sends report on share repurchase results, or report on results of issuance of shares for paying dividends or issuance of shares for increasing share capital from equity to SSC and publicly discloses information.

2. The public company must complete the sale of treasury stocks within 10 business days from the day on which it sends report to SSC and publicly discloses information about the sale of treasury stocks using the form in Appendix No. 36 enclosed herewith.

3. Within 10 days from the completion of the sale of treasury stocks as prescribed in Clause 1 of this Article, the public company must send a report on results of sale of treasury stocks to SSC and publicly disclose information theore using the form in Appendix No. 39 enclosed herewith.

Article 14. Responsibilities of securities company designated as share repurchase agent

1. Instruct the public company to carry out the share repurchase according to regulations and the announced plan;

2. Ensure that public company has enough money on its trading account when placing buy order for the trading volume according to the reported plan and disclosed information;

3. Not to use information about the share repurchase of the designating public company, which is not yet disclosed, for selling securities of that public company or reveal relevant information to a third party, unless information is provided in accordance with regulations of law.

Article 15. Responsibilities of VNX

1. Supervise listed organizations and registered organizations disclosing information before, during and after their share repurchases and sale of treasury stocks as prescribed;

2. Supervise designated securities companies making share repurchases as prescribed.

Section V

IMPLEMENTATION CLAUSE

Article 16. Implementation clause

1. This Circular comes into force from February 15, 2021 and supersedes the Circular No. 162/2015/TT-BTC dated October 26, 2015 of the Minister of Finance.

2. SSC, VNX, VSDCC, issuers, public companies, securities companies and relevant organizations and individuals shall implement this Circular./.

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