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MINISTRY OF
FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No.:
118/2020/TT-BTC
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Hanoi, December
31, 2020
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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.
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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
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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
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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;
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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;
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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;
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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;
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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;
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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
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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.
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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.
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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;
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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.
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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.
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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
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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./.
PP. MINISTER
DEPUTY MINISTER
Huynh Quang Hai