Circular No. 130/2012/TT-BTC dated August 10, 2012 of the Ministry of Finance guiding the repurchase of shares, the sale of treasury shares, and the additional shares issuance of public companies

CIRCULAR

GUIDING THE REPURCHASE OF SHARES, THE SALE OF TREASURY SHARES, AND THE ADDITIONAL SHARES ISSUANCE OF PUBLIC COMPANIES

Pursuant to the Law on Securities No. 70/2006/QH11 dated June 29, 2006;

Pursuant to the Law on amending and supplementing a number of articles of the Law on Securities No. 62/2010/QH12 dated November 24, 2010;

Pursuant to the Law on Enterprise No. 60/2005/QH11 dated November 29, 2005;

Pursuant to the Government s Decree No. 118/2008/NĐ-CP dated November 27, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

Pursuant to the Government s Decree No. 102/2010/NĐ-CP dated October 01, 2010, detailing the implementation of a number of articles of the Law on Enterprise;

Pursuant to 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;

At the proposal of the President of the State Securities Commission, the Minister of Finance promulgates the Circular guiding the repurchase of shares, the sale of treasury shares, and the additional shares issuance of public companies.

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of and subjects regulation

This Circular guides public companies repurchasing shares, selling treasury shares, issuing shares to pay dividends, issuing shares to increase share capital from equity capital, issuing shares under Employee shares ownership plans (ESOP) of public companies.

Article 2. Principles of repurchasing shares, selling treasury shares, and issuing additional shares of public companies

1. The information in the report on the repurchase of shares, the sale of treasury shares, the issuance of shares to pay dividends, the issuance of shares to increase share capital from equity capital, the issuance of shares under an ESOP of a public company must be correct, unambiguous, and contain sufficient information that may affect the investors’ decisions.

2. The public companies repurchasing shares, selling treasury shares, issuing shares to pay dividends, issuing shares to increase share capital from equity capital, issuing shares under an ESOP must be responsible for the authenticity and completion of the reports.

3. Public companies only repurchase shares, sell treasury shares, issue shares to pay dividends, issue shares to increase share capital from equity capital, or issue shares under the an ESOP when they satisfy the conditions prescribed by law.

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.

Chapter 3.

SOME CASES OF ADDITIONAL ISSUANCE OF SHARES OF PUBLIC COMPANIES

SECTION 1. ISSUING SHARES TO PAY DIVIDENDS

Article 17. Conditions for issuing shares to pay dividends

The public company that issues shares to pay dividends to existing shareholders in order to increase share capital must satisfy the following conditions:

1. Having the decision made by the General assembly of shareholders on approving the plan of issuing shares to pay dividends.

2. Having sufficient sources from undistributed post-tax profits, certified by auditors. In case the public company being parent company issues shares to pay dividends, the undistributed post-tax profits are based on the undistributed post-tax profits within their right to use in the audited unified Financial statement.

Article 18. Reporting documents about the issuance of shares for paying dividend

1. The report on the treasury shares sale must be made in accordance with Annex 06 of this Circular.

2. The decision of the General assembly of shareholders on approving the plan of issuing shares to pay dividends.

3. The nearest audited Financial statement.

4. The plan for handling fractional share (if any) approved by the General assembly of shareholders or the Board of Directors.

Article 19. Reporting the issuance and disclosing information

1. The issuing organization must send the documents specified in Article 18 of this Circular to the State Securities Commission.

2. In case the reporting documents about the issuance is not complete and valid, the State Securities Commission shall give opinions about such 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 issuance of shares for paying dividends, the issuing organizations must disclose the information about the issuance on means of mass media at least 07 days before the anticipated issuance date under Annex 07 of this Circular. The anticipated issuance date must not exceed 45 days as from the State Securities Commission notifies the complete reception of reporting documents.

4. Within 10 working days as from finishing issuing shares to pay dividends, the issuing organization must send reports on the results of the issuance to the State Securities Commission and disclose the information under the form in Annex 08 of this Circular.

5. Public companies having listed/registered shares must registered for additional transaction of the shares issued to pay dividends with the Stock Exchange within 15 days as from finishing the issuance.

Article 20. Handling fractional share

1. Fractional share is a fraction of share (less than 01 whole share). If fractional shares are generated during the issuance of shares for paying dividends, the company must find a solution to ensure the interest and equity among the shareholders. The plan for handling fractional shares (if any) must be approved by the General assembly of shareholders or the Board of Directors.

2. The company is entitled to repurchase the fractional shares as treasury shares. The amount of treasury shares generated from handling fractional shares shall be recorded and handled in accordance with this Circular and relevant provisions.

SECTION 2. ISSUING SHARES TO INCREASE SHARE CAPITAL FROM EQUITY CAPITAL.

Article 21. Conditions for issuing shares to increase share capital from equity capital

A public company that issues shares to increase share capital from equity capital must satisfy the following conditions:

1. Having the decision made by the General assembly of shareholders on approving the plan of issuing shares to increase share capital from equity capital.

2. The capital is sufficient 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 being a parent company issues shares to increase share capital from equity capital, the sources used to increase the share capital is the capital within the right to own and use of the parent company in the audited unified Financial statement.

3. The total value of the sources stated in Clause 2 this Article must not be lower than the total value of the increased share capital according to the plan approved by the General assembly of shareholders.

Article 22. Reporting documents about the issuance of shares for increasing share capital from equity capital

1. The report on the issuance of shares for increasing share capital from equity capital made under Annex 06 of this Circular.

2. The decision of the General assembly of shareholders on approving the plan of issuing shares to pay dividends.

3. The nearest audited Financial statement.

4. The plan for handling fractional share (if any) approved by the General assembly of shareholders or the Board of Directors.

Article 23. Reporting the issuance and disclosing information

1. The issuing organization must send the documents specified in Article 22 of this Circular to the State Securities Commission.

2. In case the reporting documents about the issuance of shares to increase share capital from equity capital is not complete and valid, the State Securities Commission shall give opinions about such 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, the issuing organizations must disclose the information about the issuance on means of mass media at least 07 working days before the anticipated issuance date under Annex 07 of this Circular. The anticipated issuance date must not exceed 45 days as from the State Securities Commission notifies the complete reception of reporting documents.

4. Within 10 working days as from finishing issuing shares to increase share capital from equity capital, the issuing organization must send reports on the results of the issuance to the State Securities Commission and disclose the information under the form in Annex 08 of this Circular.

5. Public companies having listed/registered shares must registered for additional transaction of the shares issued to increase share capital from equity capital with the Stock Exchange within 15 days as from finishing the issuance.

Article 24. Handling fractional share

The principles of handling fractional share are prescribed in Article 20 of this Circular.

SECTION 3. ISSUING SHARES UNDER AN EMPLOYEE SHARES OWNERSHIP PROGRAM

Article 25. Conditions for issuing shares under an employee shares ownership program (ESOP)

A public companies that issues shares under an ESOP must satisfy the following conditions:

1. Having a selection program and shares issuance plan approved by the General assembly of shareholders.

2. The total shares issued in each 12 months must not exceed 5% of the outstanding shares of the company.

3. The Board of Directors must announce the standards and the list of employees eligible for participating in the program, the method for calculating prices, the method for calculating the shares being distributed to each subjects, and the time of execution.

4. When issuing bonus shares to employees, apart from the conditions specified in Clause 1, Clause 2, Clause 3 this Article, the company must have sufficient 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 company must ensure the sufficient sources to increase the share capital, within the right to own and use of the parent company, in the audited unified Financial statement.

5. When issuing bonus shares to employees, the total value of the sources stated in Clause 4 this Article must not be lower than the total value of the increased share capital according to the plan approved by the General assembly of shareholders.

Article 26. Reporting documents about the issuance of stock under an ESOP

1. The report on the issuance of stock under an ESOP made under Annex 09 of this Circular.

2. The decision of the General assembly of shareholders on approving the ESOP. People of whom the interests are relevant to the issuance of share under an ESOP must not vote for the Resolution of the General assembly of shareholders on the issuance of stock under an ESOP.

3. The decision made by the Board of Directors or the General assembly of shareholders on approving the standards and the list of employees eligible for participating in the program, the method for calculating prices, the method for calculating the shares being distributed to each subjects, and the time of execution.

4. The audited Financial statement of the nearest period when issuing bonus shares to employees.

Article 27. Reporting the issuance and disclosing information

1. The issuing organization must send the documents specified in Article 26 of this Circular to the State Securities Commission.

2. In case the reporting documents about issuance of stock under an ESOP is not complete and valid, the State Securities Commission shall give opinions about such 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 issuance of stock under an ESOP, the issuing organizations must disclose the information about the issuance on means of mass media at least 07 days before the anticipated issuance date under Annex 10 of this Circular. The anticipated issuance date must not exceed 45 days as from the State Securities Commission notifies the complete reception of reporting documents.

4. Within 10 working days as from finishing the issuance, the issuing organization must send reports on the results of the issuance to the State Securities Commission and disclose the information under the form in Annex 11 of this Circular. The report on the issuance of shares under an ESOP must be enclosed with the list of the purchased shares with the signatures of the employees eligible for purchasing shares.

5. Public companies having listed/registered stock must registered for additional transaction of the stock issued under an ESOP with the Stock Exchange within 15 days as from finishing the issuance.

Chapter 4.

IMPLEMENTATION ORGANIZATION

Article 28. Implementation organization

1. This Circular takes effect on October 01, 2012, and supersedes the provisions on repurchase of shares, sale of treasury shares, and some cases of additional issuance of shares of public companies in the Circular No. 18/2007/TT-BTC dated March 13, 2007 of the Ministry of Finance, on repurchasing and reselling shares, and some cases of additional issuance of shares of public companies.

2. The State Securities Commission and the Stock Exchange must guide and inspect the implementation of this Circular off public companies.

3. Relevant organizations and individuals are responsible for implementing this Circular.

4. The amendment and supplementation of this Circular are decided by the Minister of Finance./.