Thông tư 194/2009/TT-BTC

CIRCULAR

PROVIDING GUIDELINES ON PUBLIC OFFERS [TO ACQUIRE] SHARES IN PUBLIC COMPANIES OR FUND CERTIFICATES IN PUBLIC CLOSED-END SECURITIES INVESTMENT FUNDS

Pursuant to the Law on Securities dated 29 June 2006;
Pursuant to Decree 118-2008-ND-CP of the Government dated 27 November 2008 on functions, duties, powers and organizational structure of the Ministry of Finance;
The Ministry of Finance hereby provides the following guidelines on public offers [to acquire] shares in public companies or fund certificates in public closed-end securities investment funds:

I. GENERAL PROVISIONS

1. Applicable scope

This Circular regulates public offers [to acquire] shares in public companies or fund certificates in public closed-end securities investment funds.

2. Interpretation of terms

In this Circular, the following terms shall be construed as follows:

(a) Public offer [tender offer] means procedures to register and publicly announce the intention to acquire, and for conducting such acquisition and carrying out other procedures relevant to acquisition of a part or all of the voting shares in any one public company as prescribed in article 32 of the Law on Securities.

Public offer [tender offer] for fund certificates in any one public closed-end securities investment fund (hereinafter referred to as closed-end fund certificates) shall be similarly interpreted.

(b) Target company means the public company whose shares are the subject of the tender offer.

(c) Target investment fund means the closed-end securities investment fund whose fund certificates are the subject of the tender offer.

(d) Official time of making the tender offer means the time when the offeror makes its public announcement of information after the State Securities Commission ["SSC"] has provided its opinion on the [proposed] tender offer.

3. Principles for tender offers

A tender offer to acquire shares in a public company or to acquire public securities investment fund certificates must ensure the following principles:

The conditions of the tender offer must apply equally to all shareholders of the target company or to all investors in the target investment fund;

The parties participating in the tender offer must be provided with complete information in order to be able to access the proposal on the purchase and sale of the shares or fund certificates;

Respect for the right of shareholders of the target company or of investors in the investment fund to make their own decisions;

Compliance with the law on securities and other relevant laws.

II. SPECIFIC PROVISIONS

1.Cases where a tender offer must be made

1.1. A tender offer must be made in the following cases prescribed in article 32.1(a) of the Law on Securities:

(a) Where any organization, individual or affiliated [related] person not yet holding 25% or holding less than 25% of the shares in a public company or of closed-end fund certificates intends to make an acquisition resulting in ownership of 25% or more of the currently circulating voting shares in any one public company or 25% or more of the number of closed-end fund certificates.

(b) Where any organization, individual or affiliated [related] person already holding 25% or more of the total number of voting shares in any one public company or of closed-end fund certificates intends to further acquire currently circulating voting shares in [such] public company or closed-end fund certificates resulting in ownership of 51%, 65% or 75%.

1.2 A tender offer to acquire shares belonging to people [offerees] who are forced to sell their shares prescribed in article 32.1(b) of the Law on Securities includes:

a) Where a public company buys back its own shares in order to reduce its charter capital pursuant to a plan approved by the general meeting of shareholders;

b) Where a competent court decision requires that a tender offer be conducted.

2. Cases where a tender offer is not required to be made

2.1 An organization or individual shall not be required to make a tender offer in the following cases:

a) Subscription for newly issued shares or for newly issued fund certificates resulting in ownership of 25% or more of the voting shares in the public company or [25% or more] of the number of public closed-end fund certificates [issued] pursuant to an issuance plan approved by the company's general meeting of shareholders or the fund's board of trustees respectively;

b) A shareholder in a public company or an investor in a public fund acquires shares or certificates by way or transfer from an existing shareholder or investor, resulting in ownership in excess of 25%, but only where such transfer is approved by the general meeting of shareholders of the public company or by the general meeting of investors of the public fund;

c) Transfer of shares as between companies in a group or corporation, such as a transfer of shares from a subsidiary to its parent company.

2.2 Before conducting the tender transaction, the organization or individual acquiring the shares [offeror] in the public company or acquiring the closed-end fund certificates must report to the SSC and disclose unusual information in accordance with law.

3. Registration of the tender offer

3.1 The offeror wishing to acquire shares in the public company or the closed-end fund certificates must forward registration data to the SSC, to the target company or to the company managing the target fund, and also to the board of trustees of the target fund. Within three days from the date of receipt of such registration data, the target company or the company managing the target investment fund must disclose information about receipt of such tender offer information on its information disclosure media or on the Stock Exchange where such target company or target fund is listed.

3.2 The SSC must, within seven days from receipt of the data registering the tender offer, provide its written opinion. If the offeror's file is incomplete or unclear, then the offeror must amend and/or supplement its file at the request of the SSC.

3.3 Data registering a tender offer shall comprise:

(a) Application to register the tender offer on the standard form in Appendix 1 issued with this Circular, containing the following items:

- Name and address of the offeror, and information about the historical activities and market share in the business activity sector of the offeror;

- Name and address of the target company or target fund;

- Relationship (if any) between the offeror and the target company or target fund;

- Detailed information about the current percentage holding of the offeror and its related [affiliated] persons

- Proposed tender offer time;

- Number of shares or fund certificates proposed to be acquired; proposed resulting percentage ownership of total currently circulating shares of the target company or percentage of total currently circulating fund certificates; and the offer price;

- Intentions of the offeror regarding continued operation of the target company, changes proposed to be made to the target company, and policies regarding employees of the target company;

- In the case of a public offer to acquire closed-end fund certificates, the offeror must specify its intention regarding continued operation of the target fund or whether it proposes to dissolve and liquidate the fund, and must provide its proposal regarding investment strategy of such target fund. If it is proposed to change the fund management company, then the offeror must provide details of same namely the proposed time for making the change, and the name of the proposed new fund management company;

- Funding sources for implementing the tender offer;

- Procedures for receiving registrations to sell shares or to sell certificates [by offerees];

- Payment date;

- Reporting date;

- Name of the securities company authorized to act as agent to conduct the public tender procedures;

- Conditions for rescission of the tender offer tranche.

(b) Decision approving the acquisition of shares or fund certificates made by the general meeting of shareholders or by the board of management (in the case of a shareholding company), or by the members' council or company owner (in the case of a limited liability company);

(c) Decision of the general meeting of shareholders in a case where a public company is buying back its own shares in order to reduce its charter capital.

3.4 If the offeror is a foreign entity and its data on the public offer to acquire is prepared in English, then such data must be translated into Vietnamese and the translations certified by a Vietnamese notary.

3.5 Foreign investors shall not be permitted to make tender offers for a volume of shares or fund certificates in excess of the permissible ratios of foreign investor ownership prescribed by law.

4. Responsibilities of the board of management of the target company, or of the board of trustees of the target investment fund

4.1 In the case of a tender offer for shares in a public company, the board of management of the target company must, within 14 days from the date of receipt of the registration data, send the company's opinion on the tender offer to the SSC and to [all] shareholders for their information. If the board of management has not formulated its opinion seven days prior to the expiry of this time-limit, it must send a request for extension of the time-limit to the SSC, and all data sent to the SSC must be both in written document form and in electronic data form as stipulated in regulations of the SSC.

4.2 In the case of a tender offer for closed-end investment fund certificates, the company managing the target investment fund must, within 14 days from the date of receipt of the registration data, send to the SSC and to [all] investors holding fund certificates the company's opinion on the tender offer together with an analysis and assessment of the offeror and the offeror's intention to acquire, the net asset value of the fund, the fund's investment strategy regarding the offer price for the fund certificates, and the proposed investment strategy of the fund after the tender offer is implemented, and such managing company's opinion on any other relevant issues.

If at the expiry of this time-limit the company managing the investment fund has not yet provided its opinion, it must send an application for extension of the time-limit to the SSC and such time-limit may be extended by a further seven days. All data sent to the SSC must be both in written document form and in electronic data form as stipulated in regulations of the SSC.

4.3 The opinion of the board of management of the target company or of the board of trustees of the target fund must be in writing and must be signed by at least two-thirds of the number of members of such board. The opinion must specify the board's assessment of the tender offer to acquire such shares or fund certificates. If any members of the board differ from the [overall] assessment of the board, then such differing opinions must be specified in the overall opinion.

5. Responsibilities of people with knowledge of a tender offer

Any member of the board of management, the director (general director), deputy directors (deputy general director), chief accountant, major shareholder, and any person related to the organization making a tender offer, to the target company or target fund, any member of the board of trustees of the target fund, any member of the securities company and any other person with knowledge of the tender offer tranche shall not be permitted to take advantage of such information in order to purchase and sell its/his/her own securities or to supply information to or to encourage or arrange for other people to purchase or sell securities prior to the official time of making the tender offer.

6. Principles for fixing offer price of a tender offer

6.1 The offer price for acquisition of the shares in the public company or of the fund certificates shall be fixed in accordance with the following principles.

a) If the target company or target fund is listed or registered for trading, then the offer price must not be less than the average reference price of the shares in the target company or of the certificates in the target fund as published by the Stock Exchange for the last 60 consecutive days prior to registration of the tender offer.

b) If the target company or target fund is not listed or registered for trading, then the offer price must not be less than the average price for the shares or for the certificates as regularly published by at least two securities companies for the last 60 consecutive days prior to sending registration of the tender offer or than the offer price of shares or certificates in the most recent issuing tranche of the target company or target fund respectively.

6.2 During the tender offer process, the offeror [making the tender offer] may only increase the offer price, and any increased offer price must be made on condition that it is announced at least seven days prior to the end of the offer tranche and such price must be offered equally to all shareholders in the target company or to all investors in the target fund and including shareholders and investors [offerees] who have already agreed to sell to the offeror.

7. Withdrawal of tender offer

7.1 After an offeror has made its public announcement, it may only withdraw its announced tender offer in the following circumstances:

(a) The volume of shares or fund certificates registered to sell [by offerees] does not meet the percentage which the offeror announced in its registration of the tender offer;

(b) The target company increases or reduces the volume of its voting shares via a share split, share consolidation or conversion of preference shares;

(c) The target company reduces its shareholding capital;

(d) The target company issues additional securities, or the target fund issues fund certificates in order to increase charter capital of the fund;

(dd) The target company sells all or a part of its business operation or assets;

(e) The target company or target fund is dissolved.

2. An offeror must report withdrawal of its tender offer to acquire shares in the target company or certificates in the target fund to the SSC, and after the SSC has provided its consent to the withdrawal the offeror must make a public announcement of such withdrawal in three consecutive additions of one electronic newspaper or of one written newspaper.

8. Tender offer trading

8.1 An entity making a tender offer [public offer to acquire] must directly participate in the tender offer transactions.

8.2 Such offeror must, within seven days from the date of receiving the SSC's opinion, publicly announce the tender offer in three consecutive additions of one electronic newspaper or of one written newspaper. The tender offer may only be implemented after the SSC has provided its written opinion confirming that the registration data is adequate as required by the regulations and after the offeror has completed its public announcement in the above-mentioned media.

In the case of a listed target company or listed investment fund, in addition to the above-mentioned announcements, the offeror must also make an announcement on the information disclosure media of the Stock Exchange where the shares of the target company or the certificates of the target fund are listed.

8.3 The offeror must appoint a securities company as its agent to carry out the tender offer.

8.4 The period for conducting the tender offer tranche must not be less than 30 days and no longer than 60 days from the official time of making the tender offer. The tender offer, including any additional offer or amended offer as compared to the originally registered offer, must be implemented on condition that the price is not less than the prices of previous tender offers. Any amendments to the originally registered tender offer must be implemented in accordance with [the provision in] clause 6.2 above.

8.5 Shareholders of the target company or investors of the target fund who have already agreed to the offer shall have the right to withdraw such agreement during the period [for conducting] the tender offer [tranche].

8.6 Where the number of shares or certificates offered [by the offeror] to purchase is less than the number proposed [by offerees] to sell, then the shares or certificates shall be purchased in the corresponding percentage of the number of shares which each shareholder in the target company or of the number of certificates which investors own and have registered for sale, ensuring that the same price applies equally to all shareholders or investors.

8.7 A tender offer to acquire closed-end fund certificates must comply with the following requirements:

a) If at the end of the tender offer tranche the number of investors and type of investors holding certificates fails to satisfy all the conditions stipulated by law as applicable to public funds and members funds, then the target investment fund must be dissolved in accordance with the Law on Securities and relevant guidelines.

b) If at the end of a tender offer tranche the offeror holds 80 percent or more of the currently circulating certificates in a public fund, then such offeror must continue to purchase, within 30 days, fund certificates of the same class from the remaining certificate holders if the latter so request. The price for this further purchase must not be less than the offer price of the earlier tender offer tranche.

In this case, at the end of the tender offer tranche, the target investment fund must register to be established as a members fund or it must be dissolved in accordance with the Law on Securities and relevant guidelines.

8.8 If at the end of a tender offer tranche the offeror holds 80 percent or more of the currently circulating shares in any one public company, then the offeror must continue to purchase, within the next 30 days, the number of shares of the same class from the remaining shareholders if the latter so request. The price for this further share purchase must not be less than the offer price at which the earlier tender offer tranche was implemented.

8.9 At the end of a tender offer, the securities company which was appointed to act as agent must remit the proceeds to shareholders selling their shares or to investors selling their fund certificates, and must transfer the shares or certificates to the offeror; or must transfer the shares to the relevant parties (in the case of a share swap) within the time-limit stipulated in the document registering the tender offer.

9. Obligations of the offeror

9.1 From the time of sending registration of its tender offer up until the time of completion of the tender offer tranche, the offeror shall not be permitted to carry out the following conduct:

a). Directly or indirectly purchase or undertake to purchase shares in the target company or certificates in the target fund outside the tender offer;

b). Sell or undertake to sell the shares or certificates which it currently offers to purchase;

c). Treat unfairly holders of shares of the same class as the shares or fund certificates currently being offered to purchase;

d). Provide separate information to certain shareholders or investors at different levels or at different points of time. This provision also applies to issuing organizations whose shares are offered to be purchased and to the target fund, to the fund management company, and to the board of trustees of the fund;

dd) Refuse to actually purchase the shares of any shareholder in the target company or the certificates of any investor in the target fund throughout the process of the tender offer;

(e) Actually purchase the shares in the target company or certificates of the target investment fund on conditions different from those announced in the data registering the tender offer.

9.2. The offeror must, after 10 days have expired from completion of the tender offer, provide a written report to the SSC on the standard form in Appendix 2 issued with this Circular, and also make a public announcement of the result of the tender offer tranche.

III. ORGANIZATION OF IMPLEMENTATION

1. This Circular shall be of full force and effect 45 days from the date of its signing, and shall replace Circular 18-2007-TT-BTC of the Ministry of Finance dated 13 March 2007 providing guidelines on purchase or resale of shares and a number of cases of issue of additional shares by public companies.

The SSC and Stock Exchanges shall, within the scope of their respective functions and duties, be responsible to guide and inspect implementation of this Circular by public companies and by public funds.

2. The Minister of Finance shall make a decision on any amendments or additions to this Circular. Any difficulties arising during implementation should be reported to the Ministry of Finance for its research and resolution.