Circular No. 194/2009/TT-BTC guiding public tender offers for shares of public companies and investment fund certificates of publicly traded closed-end investment funds, pursuant to the Securities Law.

CIRCULAR

Guidelines for Public Tender Offers of Shares of Listed Companies and Securities Investment Fund Certificates

certificate of fundof Closed-End Securities Investment Funds

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BASED ON THE SECURITIES LAW NUMBER 70/2006/QH11 OF JUNE 29, 2006;

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

The Ministry of Finance hereby guides public tender offers of shares of listed companies and securities investment fund certificates of closed-end securities investment funds as follows:

This technical regulation sets out technical requirements, testing methods, sampling procedures; management requirements; responsibilities of organizations and individuals producing, trading, and importing cigarettes.

Thông tư này quy định chi tiết khoản 4 Điều 38 Luật Thủy sản số 18/2017/QH14 đã được sửa đổi, bổ sung tại điểm c khoản 21 Điều 14 Luật số 146/2025/QH15.

These Circulars regulate public tender offers of shares of listed companies and securities investment fund certificates of closed-end securities investment funds.

2. Explanation of terms

In this Circular, the following terms are understood as follows:

a. A public tender offer is a registration procedure and public announcement of the intention to purchase, implementation of purchases, and other related procedures concerning the acquisition of a portion or all voting shares of a listed company as stipulated in Article 32 of the Securities Law.

A public tender offer for securities investment fund certificates of a closed-end listed securities investment fund (hereinafter referred to as closed-end fund certificates) shall be understood similarly.

b. The target company is a listed company whose shares are the subject of a public tender offer.

c. The target fund is a closed-end securities investment fund whose fund certificates are the subject of a public tender offer.

d. The official time of a public tender offer is the time when the tender offeror publicly announces information after the State Securities Commission has provided comments on the tender offer.

3. Principles of Public Tender Offers

Public tender offers of shares of listed companies or securities investment fund certificates of closed-end securities investment funds must ensure the following principles:

a. Conditions for public tender offers must be applied fairly to all shareholders of the target company or investors of the target fund;

b. All parties involved in the public tender offer must be provided with sufficient information to access the purchase and sale proposals of shares or fund certificates;

c. Respect the right of self-determination of shareholders of the target company or investors of the target fund;

d. Comply with the provisions of the Securities Law and other relevant laws.

II. SPECIFIC PROVISIONS

1. Situations Requiring Public Tender Offers

1.1. Situations requiring public tender offers as stipulated in point a, Clause 1, Article 32 of the Securities Law include:

a. Organizations, individuals, and associated persons who do not hold or currently hold less than 25% of the shares of a listed company or closed-end fund certificates and intend to purchase leading to ownership of 25% or more of the circulating voting shares of a listed company or 25% or more of the closed-end fund certificates.

b. Organizations, individuals, and associated persons who already hold 25% or more of the total circulating voting shares of a listed company or closed-end fund certificates and intend to purchase additional circulating voting shares of a listed company or closed-end fund certificates leading to ownership reaching 51%, 65%, and 75%.

1.2. Public tender offers of shares owned by persons required to sell as stipulated in point b, Clause 1, Article 32 of the Securities Law include:

a. A listed company repurchasing its own shares for the purpose of reducing capital according to a plan approved by the General Shareholders' Meeting;

b. Cases of tender offers pursuant to decisions of competent courts.

2. Situations Not Requiring Public Tender Offer Procedures

2.1. Organizations and individuals are not required to implement public tender offer procedures in the following cases:

a. Purchasing newly issued shares or fund certificates leading to ownership of 25% or more of the voting shares of a listed company or fund certificates of a closed-end securities investment fund according to a distribution plan approved by the General Shareholders' Meeting of the listed company or the Board of Directors of the closed-end securities investment fund.

b. Shareholders of a listed company or investors of a closed-end securities investment fund transferring shares or fund certificates to another organization or individual resulting in a change in ownership exceeding 25% which must be approved by the General Shareholders' Meeting of the listed company or the investors' meeting of the closed-end securities investment fund.

c. Transfers of shares between companies within the same group or corporation according to the parent-subsidiary model.

2.2. Prior to implementing a public tender offer transaction, organizations and individuals purchasing shares of a listed company or closed-end fund certificates must simultaneously report to the State Securities Commission and disclose extraordinary information in accordance with the law.

3. Registration of Public Tender Offers

3.1. Organizations and individuals making public tender offers of shares of listed companies or closed-end fund certificates must submit tender offer registration documents to the State Securities Commission. The tender offer registration documents must also be submitted concurrently to the target company or the fund management company managing the target fund and the Board of Directors of the target fund. Within three (03) days from the date of receipt of the tender offer registration documents, the target company or the fund management company managing the target fund is obligated to disclose information about receiving the tender offer proposal through the company's disclosure channels or the Stock Exchange where the target company or the target fund is listed.

3.2. Within seven (07) days from the date of receipt of the tender offer registration documents, the State Securities Commission must provide a written response. In case the file is incomplete or unclear, the tender offeror must supplement and amend it according to the requirements of the State Securities Commission.

3.3. The tender offer registration documents include:

a. A public tender offer registration form according to Appendix I attached to this Circular, including the following main contents:

- Name and address of the tender offeror; information on the history of operations and market share in business areas of the tender offeror;

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

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

- Detailed information on the current holding ratio of the tender offeror and associated parties;

- Expected tender offer period;

- Number of shares or fund certificates expected to be purchased, the expected holding ratio over the total number of circulating shares of the target company or the total number of circulating fund certificates, and the purchase price;

- The intention of the bidder regarding the continued operation of the target company, proposals for changes to the target company, policies towards employees of the target company;

- In the case of a public tender offer for closed-end fund certificates, the bidder must clearly state their intention regarding the continued operation of the target investment fund or the dissolution and liquidation of the fund, proposals on the investment strategy for the target investment fund. If proposing a change in the management company, the bidder must specify the criteria, the expected time frame for implementation, and the name of the management company that will be selected as a replacement;

- The source of funds used to implement the public tender offer;

- Procedures for accepting registration to sell shares or fund certificates;

- Payment date;

- Reporting date;

- Name of the securities company authorized to act as agent for the tender offer procedures;

- Conditions for canceling the tender offer (if any).

b. Decision of the Shareholders' General Meeting or the Board of Directors (for joint-stock companies), the Board of Members or the owner of the company (for limited liability companies) approving the purchase of shares or fund certificates;

c. Decision of the Shareholders' General Meeting in the case where a public company repurchases its own shares with the aim of reducing its charter capital;

3.4. In the case where the bidder is a foreign organization or individual, if the tender offer documents are prepared in English, they must be translated into Vietnamese. Vietnamese translations from English must be certified by a Vietnamese notary office;

3.5. Foreign investors may not carry out a public tender offer for listed companies or public funds to acquire a number of shares or fund certificates exceeding the foreign investor ownership ratio as stipulated by law;

4. Responsibilities of the Board of Directors of the target company, the Investment Fund Management Board;

4.1. For the case of a public tender offer for shares of a public company, within fourteen (14) days from the date of receiving the tender offer registration documents, the Board of Directors of the target company must send the State Securities Commission and inform shareholders of the company's opinion on the public tender offer proposal. Within seven (07) days from the expiration of the previous period, if the Board of Directors of the target company has not expressed an opinion, it must submit an extension request to the State Securities Commission. Documents sent to the State Securities Commission must be in the form of written and electronic data as prescribed by the State Securities Commission;

4.2. For the case of a public tender offer for closed-end fund certificates, within fourteen (14) days from the date of receiving the tender offer registration documents, the management company of the target investment fund must send the State Securities Commission and inform fund certificate holders of the company's opinion on the public tender offer proposal along with analyses and evaluations of the bidder, the intention to tender, the net asset value of the Fund, the Fund's investment strategy compared to the tender offer price of fund certificates, the Fund's investment strategy after the public tender offer, and other related issues;

If at the end of this period the management company of the target investment fund has not expressed an opinion, the management company must submit an extension request to the State Securities Commission. The extension period is seven (07) days from the previous expiration date. Documents sent to the State Securities Commission must be in the form of written and electronic data as prescribed by the State Securities Commission;

4.3. Opinions of the Board of Directors of the target company, the Investment Fund Management Board must be in writing, signed by at least two-thirds (2/3) of the members of the Board of Directors, the Investment Fund Management Board, and must clearly state the evaluation of the Board of Directors, the Investment Fund Management Board on the tender offer of shares or fund certificates. In cases where the opinions of Board of Directors members, Investment Fund Management Board members differ from the evaluation of the Board of Directors, the Investment Fund Management Board, the relevant parties must publish these opinions together;

5. Responsibilities of persons who know information about the public tender offer;

Members of the Board of Directors, General Director (General Manager), Deputy General Director (Deputy General Manager), Chief Accountant, major shareholders, and related persons of the organization making the public tender offer, the target company, or the management company of the target fund, members of the Investment Fund Management Board, employees of the securities company, and others who know information about the tender offer period may not take advantage of the information to buy or sell securities for themselves or provide information, incite, or encourage others to buy or sell securities before the official tender offer date;

6. Principles for determining the tender offer price;

6.1. The public tender offer price for shares of public companies and fund certificates of public investment funds shall be determined according to the following principles;

a. In the case where the target company or the target investment fund is a listed entity or registered for trading: the tender offer price must not be lower than the average reference price of the target company's shares or the target investment fund's fund certificates published by the Stock Exchange in the sixty (60) days immediately preceding the date of submission of the tender offer registration;

b. In the case where the target company or the target investment fund is not a listed entity or registered for trading: the tender offer price must not be lower than the average share price of the target company or the fund certificate price of the target investment fund quoted by at least two (02) securities companies continuously in the sixty (60) days immediately preceding the date of submission of the tender offer registration, or the issue price of shares or fund certificates in the most recent issuance of the target company or the target investment fund;

6.2. During the public tender offer process, the bidder may only increase the tender offer price. The price increase must be announced at least seven (07) days before the end of the tender offer period and must ensure that the increased price applies to all shareholders of the target company or investors of the target investment fund, including those who have already accepted selling to the bidder.

7. Withdrawal of a public tender offer

7.1. After publication, the tender offeror may only withdraw the tender offer that has been published in the following cases:

a. The number of shares or fund certificates registered for sale does not reach the ratio announced by the tender offeror in the Public Tender Offer Registration Form.

b. The target company increases or decreases the number of voting shares through stock splits, consolidations, or conversion of preferred shares;

c. The target company reduces its share capital;

d. The target company issues additional securities or the target fund issues fund certificates to increase its charter capital;

đ. The target company sells all or part of its business operations or assets;

e. The target company or target fund is dissolved.

7.2. The tender offeror must report to the State Securities Commission on the withdrawal of the tender offer for the target company or investment fund target and must publicly announce the withdrawal of the tender offer on one (01) online news website or one (01) newspaper in three consecutive issues after receiving approval from the State Securities Commission.

8. Public tender offer transactions

8.1. Organizations or individuals making a public tender offer must directly participate in the public tender offer transaction.

8.2. Within seven days from the date of receipt of the State Securities Commission's opinion, the tender offeror must publicly announce the tender offer on one (01) online news website or one (01) newspaper in three consecutive issues. The public tender offer can only be implemented after the State Securities Commission issues a notification document confirming that the tender offer registration materials comply with regulations and have been publicly announced in the manner described above.

In the case where the target company or investment fund target is a listed organization, in addition to the announcement mentioned above, the organizations or individuals making the tender offer must also announce on the information disclosure means of the Stock Exchange where the target company's shares or the investment fund target's fund certificates are listed.

8.3. The tender offeror must designate a securities company as an agent to execute the tender offer.

8.4. The time to implement a public tender offer round shall not be less than thirty (30) days and not more than sixty (60) days from the date of the formal tender offer. Any supplementary or adjusted tender offers must be conducted under conditions no lower than the price terms of previous tender offer rounds. Adjustments to the initial tender offer registration must comply with the provisions of Point 6.2, Section II of this Circular.

8.5. Shareholders of the target company or investors of the investment fund target who have accepted the tender offer have the right to withdraw their acceptance during the public tender offer period.

8.6. If the number of shares or fund certificates offered for purchase is less than the number of shares or fund certificates put up for sale, the shares or fund certificates purchased will be based on a proportional ratio corresponding to the number of shares each shareholder of the target company, or the number of fund certificates held by each investor registers for sale, ensuring fair pricing for all shareholders or investors.

8.7. For public tender offers of closed-end fund certificates, the public tender offer must comply with the following requirements:

a. After the end of the tender offer round, if the number and type of investors holding fund certificates do not meet the conditions for a public fund or member fund as stipulated by law, the investment fund target must dissolve according to the Securities Law and related documents.

b. After the end of the tender offer round, if the tender offeror holds eighty percent (80%) or more of the circulating fund certificates of a public fund, they must purchase the remaining fund certificates of other investors within thirty (30) days if these investors request it. The purchase price for the remaining fund certificates cannot be lower than the price of the recently concluded tender offer round.

In this case, after the end of the tender offer, the investment fund target must register to establish a member fund or dissolve according to the Securities Law and related documents.

8.8. After the end of the tender offer round, if the tender offeror holds eighty percent (80%) or more of the circulating shares of a public company, they must purchase the remaining shares of other shareholders within thirty (30) days if these shareholders request it. The purchase price for the remaining shares cannot be lower than the price of the recently concluded tender offer round.

8.9. Upon completion of the tender offer round, the designated securities company must transfer funds to shareholders selling shares or investors selling fund certificates and transfer shares or fund certificates to the tender offeror; or transfer shares to the parties involved (in the case of share exchange) within the timeframe specified in the Public Tender Offer Registration Form.

9. Obligations of the tender offeror

9.1. From the date of submitting the public tender offer registration until the completion of the tender offer round, the tender offeror shall not engage in the following actions:

a. Directly or indirectly purchasing or committing to purchase shares of the target company or fund certificates of the investment fund target outside the tender offer round;

b. Selling or committing to sell shares or fund certificates that are being tendered;

c. Treating holders of the same type of shares or fund certificates being tendered unfairly;

d. Providing different levels of information or at different times to shareholders or investors. This provision also applies to issuers whose shares are the subject of the tender offer, investment fund targets, fund management companies, and Fund Management Boards;

đ. Refusing to purchase shares from shareholders of the target company or fund certificates from investors of the investment fund target during the tender offer process;

e. Purchasing shares of the target company or fund certificates of the investment fund target contrary to the terms announced in the public tender offer registration form.

9.2. Within ten (10) days from the end of the public tender offer period, the tendering party shall report to the State Securities Commission in writing (in accordance with the form prescribed in Appendix II attached hereto) and simultaneously announce to the public the results of the tender offer period.

III. IMPLEMENTATION

1. This Circular takes effect forty-five (45) days from the date of signature. This Circular replaces Circular No. 18/2007/TT-BTC dated March 13, 2007 of the Ministry of Finance guiding the purchase, resale of shares and certain cases of additional issuance of shares by public companies.

The State Securities Commission and the Stock Exchange within their respective functions and duties shall be responsible for guiding and supervising public companies or public funds in implementing this Circular.

2. Any amendment or supplementation to this Circular shall be decided by the Minister of Finance. In the course of implementation, if there are difficulties or obstacles, they are requested to reflect them to the Ministry of Finance for study and resolution./.