Chapter 2.
REPURCHASE OF SHARES, SALE OF TREASURY SHARES
SECTION 1. REPURCHASE OF SHARES
Article 3. Conditions for repurchasing shares
The public company that repurchases their issued shares as treasury shares must satisfy the following conditions:
1. The conditions in the Government's Decree No. 58/2012/NĐ-CP dated July 20, 2012, detailing the implementation of a number of articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities.
2. The capital is sufficient to repurchase shares according to the nearest audited Financial statements. If the company is a parent company, the capital within the right to own and use of the parent company in the audited unified Financial statement must be sufficient.
Article 4. The cases banned from repurchasing shares
1. The company fails to repurchases shares in the cases prescribed in Clause 1 Article 38 of the Government's Decree No. 58/2012/NĐ-CP dated July 20, 2012, detailing the implementation of a number of articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities.
2. Unless the repurchase is made according to the ownership percentage of each shareholder, or the company publicly offer the issued shares, the company must not purchase shares as treasury shares from the following subjects:
a) The company managers and relevant persons as prescribed by the Law on Securities;
b) The owner of shares restricted from transfer as prescribed by law and the company’s charter;
c) The major shareholders as prescribed by the Law on Securities.
Point a and Point c Clause 2 this Article are not applicable to public companies having listed/registered shares at the Stock Exchange that repurchase shares by order matching.
3. The company must not repurchase shares in other cases as prescribed by professional law provisions.
Article 5. Reporting documents on the repurchase of shares
1. The report on the repurchase of shares must be made in accordance with Annex 01 of this Circular.
2. The approval decision of the General assembly of shareholders when repurchasing more than 10% common shares, or more than 10% of issued shares with preferential dividends, or the approval decision of the Board of Directors when repurchasing ≤ 10% common shares within 12 months, or ≤ 10% of issued shares with preferential dividends.
3. The written confirmation on the transaction of the securities company.
4. The decision made by the Board of Directors on approving the repurchase of shares plan.
5. The nearest audited Financial statement.
Article 6. Reporting and disclosing information about the repurchase of shares
1. Public companies repurchasing shares must send the reporting documents specified in Article 5 of this Circular to the State Securities Commission.
2. In case the reporting documents about the repurchase of shares is not complete and valid, the State Securities Commission shall give opinions about the reporting documents within 07 working days as from receiving the reporting documents.
3. Within 07 working days as from the State Securities Commission notifies the complete reception of reporting documents about the repurchase of shares, the public company must disclose the information on means of mass media in accordance with Annex 02 of this Circular. The repurchase of shares must be made after at least 07 working days as from the public company discloses the information.
4. Within 10 working days as from finishing the repurchase of shares, the public company must send reports on the transaction results to the State Securities Commission and disclose the information under the form in Annex 05 of this Circular. If the public company fails to purchase all the amount of shares planned to repurchase, it must report and give the reasons.
5. When repurchasing shares, the public companies that have shares listed/registered at the Stock Exchange must disclose information on the means of information disclosure of the Stock Exchange. The contents and time of information disclosure are prescribed in Clause 3 and Clause 4 this Article.
Article 7. Making shares repurchase
1. When repurchasing shares, the public companies that have shares listed/registered at the Stock Exchange must comply with the provisions on transaction of the Stock Exchange.
2. The public companies that are not listed/registered at the Stock Exchange must repurchase shares via an appointed securities company.
3. The public company must finish the repurchase of shares in accordance with the time specified in the information disclosure sheet, but must not exceed 30 days as from commencing the transaction, even in cases of changing transaction as prescribed in Article 8 of this Circular.
Article 8. Changing the repurchase of shares
1. The public company must not change the intention or the plan of repurchase of shares as reported and announced, except for force majeure (natural disaster, fire, war, and other situations accepted by the State Securities Commission), and must be reported to the State Securities Commission.
2. Public companies must report their change to the State Securities Commission and announce such change on means of mass media within 24 hours as from making the decision on changing the repurchase of shares in accordance with Annex 03 of this Circular.
3. The State Securities Commission shall give opinions about the change of the repurchase of shares within 03 working days as from receiving the change report.
4. The public company only changes the repurchase of shares after receiving the approval from the State Securities Commission. The public company must announce their change of the repurchase of shares on means of mass media, and send it to the State Securities Commission within 24 hours as from receiving the approval from the State Securities Commission for changing the repurchase of shares, in accordance with Annex 04 of this Circular.
5. When changing the repurchase of shares, the public companies that have shares listed/registered at the Stock Exchange must disclose information on the means of information disclosure of the Stock Exchange. The contents and time of information disclosure are prescribed in Clause 2 and Clause 4 this Article.
Article 9. Managing and recording treasury shares
1. Treasury shares is not eligible for the right given from the issuance of shares to pay dividends, the additional issue to increase share capital from equity capital.
2. The management and recording of treasury shares must comply with accounting recording principles.
Article 10. Responsibility of securities companies and the Stock Exchange
1. The securities company appointed to make the repurchase of shares must:
a) Guide the public company to make the repurchase of shares in accordance with current provisions and the announce planned;
b) Ensure that the public company has enough money in their transaction account to make the transaction that has been reported and publicly announced;
c) Not use the unannounced information related to the repurchase of shares of the public company to trade the securities of that public company, nor reveal relevant information to a third party.
2. For public companies that have listed/registered shares, the Stock Exchange must:
a) Supervise the public company to disclose the information before and after the repurchase of shares in accordance with current provisions;
b) Supervise the appointed securities company to make the repurchase of shares in accordance with current provisions.
SECTION 2. SALE OF TREASURY SHARES
Article 11. Conditions for selling treasury shares
1. The company that sell treasury shares must comply with Article 39 of the Government's Decree No. 58/2012/NĐ-CP dated July 20, 2012, detailing the implementation of a number of articles of the Law on Securities and the Law on amending and supplementing a number of articles of the Law on Securities.
2. The use of treasury shares for distributing to existing shareholders and rewarding employees must be approved by the General assembly of shareholders, and the company must ensure sufficient corresponding sources from the equity capital according to the nearest audited Financial statement from the following sources:
a) Capital surplus;
b) Development investment fund;
c) Undistributed post-tax profits;
d) Other funds (if any) used for supplementing charter capital as prescribed by law.
If the company is a parent company, the sources within the right to own and use of the parent company in the audited unified Financial statement must be sufficient.
Article 12. Reporting documents of treasury shares sale
1. The report on the treasury shares sale must be made in accordance with Annex 01 of this Circular.
2. The decision made by the General assembly of shareholders or the Board of Directors on approving the sale of treasury shares.
3. The written confirmation on the transaction of the securities company.
4. The nearest audited Financial statement.
Article 13. Reporting and disclosing information
1. Public companies that sell treasury shares must send the reporting documents prescribed in Article 12 of this Circular to the State Securities Commission.
2. In case the reporting documents about the sale of treasury shares is not complete and valid, the State Securities Commission shall give opinions about the reporting documents within 07 working days as from receiving the reporting documents.
3. Within 07 working days as from the State Securities Commission notifies the complete reception of reporting documents about the sale of treasury shares, the public company must disclose the information on means of mass media in accordance with Annex 02 of this Circular. The sale of treasury shares must be made after at least 07 working days as from the public company discloses the information.
4. Within 10 working days as from finishing the sale of treasury shares, the public company must send reports on the transaction results to the State Securities Commission and disclose the information under the form in Annex 05 of this Circular. If the public company fails to sale all the amount of shares planned to sell, it must report and give the reasons.
5. When selling treasury shares, the public companies that have shares listed/registered at the Stock Exchange must disclose information on the means of information disclosure of the Stock Exchange. The contents and time of information disclosure are prescribed in Clause 3 and Clause 4 this Article.
Article 14. Making transaction
1. When selling treasury shares, the public companies that have shares listed/registered at the Stock Exchange must comply with the provisions on transaction of the Stock Exchange.
2. The public companies that are not listed/registered at the Stock Exchange must sell treasury shares via an appointed securities company.
3. The public company must finish the sale of treasury shares in accordance with the time specified in the information disclosure sheet, but must not exceed 30 days as from commencing the transaction, even in cases of changing the sale of treasury shares prescribed in Article 15 of this Circular.
Article 15. Changing the sale of treasury shares
1. The public company must not change the intention or the plan of the sale of treasury shares as reported and announced, except for force majeure (natural disaster, fire, war, and other situations accepted by the State Securities Commission), and must be reported to the State Securities Commission.
2. Public companies must report their change to the State Securities Commission and announce such change on means of mass media within 24 hours as from making the decision on changing the sale of treasury shares in accordance with Annex 03 of this Circular.
3. The State Securities Commission shall give opinions about the change of the sale of treasury shares within 03 working days as from receiving the change report.
4. The public company only changes the sale of treasury shares after receiving the approval from the State Securities Commission. The public company must announce their change on means of mass media, and send it to the State Securities Commission within 24 hours as from receiving the approval from the State Securities Commission, in accordance with Annex 04 of this Circular.
5. When changing the sale of treasury shares, the public companies that have shares listed/registered at the Stock Exchange must disclose information on the means of information disclosure of the Stock Exchange. The contents and time of information disclosure are prescribed in Clause 2 and Clause 4 this Article.
Article 16. Responsibility of securities companies and the Stock Exchange
1. The securities company appointed to make the sale of treasury shares must:
a) Guide the public company to sell the treasury shares in accordance with current provisions and the announce planned;
b) Ensure that the public company has enough money in their transaction account to make the transaction that has been reported and publicly announced;
c) Not use the unannounced information related to the sale of treasury shares of the public company to trade the securities of that public company, nor reveal relevant information to a third party.
2. For public companies that have listed/registered shares, the Stock Exchange must:
a) Supervise the public company to disclose the information before and after the sale of treasury shares in accordance with current provisions;
b) Supervise the appointed securities company to make the sale of treasury shares in accordance with current provisions.
Tìm kiếm
Thông tư 130/2012/TT-BTC (Bản Word)