Chương 7 Nghị định 58/2012/NĐ-CP: Công ty đầu tư chứng khoán

Chapter 7.

SECURITIES INVESTMENT COMPANY

Article 77. General regulations on securities investment company

1. The Securities Investment Company just issues a type of stock and has no obligation to redeem the issued stock except for the case of consolidation, merger of enterprise. The rights, obligations and interests of shareholders and other issues related to the shareholders' meeting shall comply with the law on enterprises.

2. The public Securities Investment Company have to entrust capital to a Fund Management Company for its management. The independent Securities Investment Company is permitted to manage the investment capital or entrust capital to a Fund Management Company for its management. In case a Securities Investment Company capital entrusts capital to a Fund Management Company for its management, at least two-thirds (2/3) of the members of the Board of Directors of the Securities Investment Company must be independent members as stipulated in Clause 1 of Article 80 of this Decree.

3. The offer of stock to the public of the public Securities Investment Company is carried out as prescribed in Article 90 of the Securities Law and regulations of the Finance Ministry.

4. The independent Securities Investment Company with a rate of ownership of foreign investor of over 49% of the charter capital must comply with the regulations applicable to foreign investor.

5. The determination of net asset value, reporting regime and information annoucement of the Securities Investment Company shall comply with regulations of the Ministry of Finance.

SECTION 1. PUBLIC SECURITIES INVESTMENT COMPANY

Article 78. Dossier, order and procedure to register securities offering to the public of the public securities investment company.

1. Registration dossier of securities offering to the public of the public Securities Investment Company includes:

a) Certificate of registration of stock offering to the public in order to establish the public Securities Investment Company shall be made by the fund management company;

b) The charter of Securities Investment Company is made under the guidance of the Ministry of Finance;

c) The Prospectus as defined in Article 15 of the Securities Law and regulations of the Finance Ministry on registration dossier of securities offering to the public;

d) The principle contract on supervision and management of investment and distribution of stock and the underwriting commitment (if any);

dd) List of proposed members of the Board of Directors, the legal representative of the public Securities Investment Company and founding shareholder, together with the following documents:

- For individuals: A copy of identity card or valid passport, criminal record and curriculum vitae;

- For organization: A copy of the License of establishment and operation, certificate of business registration (if any), copy of identity card or valid passport, criminal record and curriculum vitae of the authorized representative along with a written authorization;

e) The commitment of the founding shareholders to register the purchase of at least 20% of the number of stocks registered for offering to the public and to hold this number of stocks for a period of 03 years from the date of issuance of license of establishment and operation, commitment to the independence of Fund Management Company and custodian bank of the independent member of the Board of Directors;

g) The list of Director (General Director), Deputy Director (Deputy General Director) and the fund manager (if any) together with copy of identity card or valid passport, criminal record and curriculum vitae and copy of certificate or fund management practice.

2. The dossier in clause 1 of this Article shall be made in one (01) original set and sent to the State Securities Commission. The documents of foreign founding shareholders shall comply with the provisions of Clause 2, Article 72 of this Decree.

3. Within 30 days after receipt of complete and valid dossier, the State Securities Commission shall issue certificate of stock offering to the public. In case of refusal, the State Securities Commission shall reply in writing stating the reasons therefor.

Article 79. Dossier, order and procedure to issue license of establishment and operation of the public securities investment company.

1. Condition for issuing license of establishment and operation of the public Securities Investment Company includes:

a) Having capital actually contributed of VND 50 billion;

b) There are at least one hundred (100) shareholders, excluding the shareholders as professional securities investor;

c) Under the management of a fund management company;

d) Assets are deposited at monitoring bank;

dd) At least two-thirds (2/3) of the members of the Board of Directors must be independent of the fund management company, custodian bank as stipulated in Clause 1, Article 80 of this Decree.

2. Within 10 days after the end of the stock offering to the public, the Fund Management Company shall make report on the results of the offering and submit dossier for the issuance of license of establishment and operation of the public securities investment company, including:

a) The written request to issue license of establishment and operation of the public securities investment company;

b) A brief report on the offering result together with certification by the custodian bank for the proceeds of the offering, the number of stocks sold;

c) The list of shareholder specifying the Shareholder’s full name, identity card number or valid passport, contact address(for individual), full name, abbreviated name, the number of certificate of business registration, head office address (for organization), type of shareholder, number of securities depository account (if any), number of stocks purchased, ownership rate, date of purchase;

d) The comprehensive report on Shareholder’s opinion on the members of the board of Directors and other relevant content (if any).

3. Within 10 days after receipt of complete and valid dossier, the State Securities Commission shall issue the license of establishment and operation to the public securities investment company. This license cum certificate of business registration. In case of refusal, the State Securities Commission shall reply in writing stating the reasons therefor.

4. Within 30 days from the date the license of establishment and operation of the public Securities Investment Company takes effect, the Fund Management Company must complete the dossier and carry out the listing of stocks of the public Securities Investment Company on the Stock Exchange.

Article 80. Board of Directors of public securities investment company

1. The Board of Directors has from three (03) to eleven (11) members, in which there are at least two-thirds (2/3) as independent members. The independent member of the board must meet the following conditions:

a) Not being the Director (General Director), Deputy Director (Deputy General Director), permanent employee of the fund management company, custodian bank or the parent company, affiliate, subsidiary of the Fund Management Company and custodian bank;

b) Not being the father, adoptive father, mother, adoptive mother, spouse, child, adopted child, natural brother, sister of the individual specified at Point a of this Clause;

c) Meeting the conditions as the member of the Board of Directors in accordance with regulation of the law on enterprise.

2. The rights and obligations and the appointment, dismissal, removal, replacement of the member of the Board of Directors shall comply with the provisions of the charter company, in accordance with the provisions of law and securities.

Article 81. Restriction of operation for public securities investment company

1. Not permitted to carry out business, production and service supply.

2. Not permitted to issue securities to the public except in the case of first offer of stock to the public to establish a company, or issue stock to existing shareholder to raise charter capital or issue stock for conversion in case of consolidation or merger.

3. Complying with regulations on investment limit in Clause 2, Article 97 of the Securities Law, the operation of capital management of the public Securities Investment Company shall be carried out by the Fund Management Company and must be monitored by the custodian bank as prescribed by the provisions of the Securities Law and guidance of the Ministry of Finance.

Article 82. Increase or decrease of the charter capital of public securities investment company

1. The public Securities Investment Company is entitled to increase or decrease its charter capital under the plan approved by the nearest session of the General Meeting of Shareholders.

a) In case of the decrease of charter capital, the Securities Investment Company must ensure the net asset value after the capital reduction to meet the capital requirements as prescribed at Point a, Clause 1, Article 79 of this Decree;

b) In case of the increase of charter capital through the issue of bonus stock or stock dividend, the company must have sufficient financial resources from capital surplus and profit after tax.

2. Dossier to request the increase and decrease of charter capital includes:

a) The written request for increase and reduction of charter capital of Securities Investment Company;

b) The meeting minutes of the General Meeting of Shareholders, the meeting minutes and decision of the the Board of Directors concerning the increase or decrease of charter capital together with implementation plan;

c) The financial statement audited to the nearest quarter;

d) The draft of announcement issued together with the list of dealers;

dd) The prospectus and company charter (if modified)

3. Within 07 days from the date of receiving complete and valid dossier as prescribed in Clause 2 of this Article, the State Securities Commission shall consider and approve any increase or decrease of the charter capital of the public securities investment company. In case of refusal, the State Securities Commission shall reply in writing stating the reasons therefor.

4. Within 07 days after the completion of the increase and decrease of the charter capital, the public Securities Investment Company shall make report to the State Securities Commission of the results of any increase or decrease of the company's charter capital including:

a) A brief report on the result of any increase or decrease of the charter capital together with the list of new investors (if any) as prescribed at Point c, Clause 2, Article 79 of this Decree;

b) Certificate of rate of capital increase that is blockaded at the custodian bank (in case of capital increase) or a certification of the custodian bank with respect to company’s completion of the disbursement and payment to shareholders (in case of capital decrease), the number of shareholders, the number of outstanding stocks (after capital adjustment). This document shall not be submitted in case of additional charter capital from after-tax profit.

5. Within 07 days from the date of receiving the report specified in Clause 4 of this Article, the State Securities Commission shall adjust the license of establishment and operation of the public securities investment company.

Article 83. Consolidation, merger of public securities investment company

1. The public Securities Investment Company is consolidated, merged with another public Securities Investment Company on the following principles:

a) The plan for consolidation or merger and contract of consolidation or merger must be approved by the General Meeting of Shareholders of the related companies. The plan for consolidation or merger must state the reason therefor, the form of implementation, the expected impact to the shareholders, the method of determining net asset value, conversion rate, the rate of payment in cash (if any), the principle of property transfer between the public securities investment company;

b) The expense of legal consultancy services, administrative expenses and other services expenses related to the consolidation, merger shall not be recorded in operating expenses of the public Securities Investment Company or other expenses that the shareholders are incurred unless otherwise decided by the General Meeting of Shareholders;

c) In case of the stock swap combined with the payment in cash, the shareholders of companies being consolidated or merged shall receive an additional amount not exceeding 10% of net asset value calculated on one (01) stock at the date of consolidation or merger;

d) Where the shareholders of the public Securities Investment Company oppose the consolidation or merger, these shareholders may request the public Securities Investment Company being consolidated or merged to redeem their shares.

2. Dossier to request the State Securities Commission to issue or adjust the license of establishment and operation to the consolidated Securities Investment Company or receive the merger include the following documents:

a) The written request for issuance of the license of establishment and operation to the consolidated Securities Investment Company or adjustment of the license of establishment and operation to the company receiving the merger;

b) The original License of establishment and operation of the consolidated and merged securities investment company;

c) The decision of the General Meeting of Shareholders  on the consolidation or merger together with meeting minutes, plans for consolidation or merger, the draft contract of consolidation or merger and the analysis report of the consolidation or merger;

d) The appraisal report of the custodian banks on the principle to determine the net asset value, the stock swap ratio, the rate of payment in cash (if any) and other relevant contents;

dd) The list of shareholders as stipulated at Point c, Clause 2 of Article 79 and other relevant documents as stipulated at Point c, d, dd, e, and g, Clause 1, Article 78 of this Decree.

3. Within 15 days from the date of receiving complete and valid dossier under the provisions of Clause 2 of this Article, the State Securities Commission shall issue the license of establishment and operation to the consolidated public Securities Investment Company or adjust the license of establishment and operation for the public Securities Investment Company receiving the merger. The date of consolidation and merger is the date the licenses above mentioned take effect. In case of refusal, the Securities Commission shall reply in writing stating the reasons therefor.

4. Within 30 days from the date of consolidation or merger, the consolidated public securities investment company, receiving merger shall make report to the State Securities Commission on the results of consolidation or merger through the fund management company. The content of the report includes:

a) Certification of the custodian bank on total assets, total liabilities, net asset value calculated at the date of consolidation or merger, the conversion rate performed, the rate of payment in cash (if any) on a stock, the number and value of stock redeemed of the shareholders opposing the consolidation or merger;

b) The documents of the competent authority certifying the public securities investment companies concerned have returned seals, certificates of seal sample registration, certificates of business tax code registration.

Article 84. Dissolution of the public Securities Investment Company

1. Cases of dissolution of the public securities investment company:

a) The investment management contract is terminated or the Fund Management Company is dissolved, goes bankrupt, revoked license of establishment and operation but the Board of Directors does not determine the replacement of the Fund Management Company within 60 days from the date of the event;

b) The supervision contract is terminated or the custodian bank is dissolved, goes bankrupt, revoked the certificate of registration of securities depository activities but the Board of Directors and the Fund Management Company does not determine the replacement of the custodian bank within 60 days from the date of the event;

c) The public Securities Investment Company finishes its operation term stated in the license of establishment and operation without being renewed;

d) By the decision of the General Meeting of Shareholders.

2. Within 30 days from the date the public Securities Investment Company is coercively dissolved under the provisions at Point a, b, Clause 1 of this Article, the Board of Directors of the public Securities Investment Company is responsible for convening the General Meeting of Shareholders to pass the decision on dissolving the company.

3. The General Meeting of Shareholders of the public Securities Investment Company shall appoint an audit organization to re-assess the assets and monitor the whole process of asset liquidation and company dissolution.

4. Within 07 days from the date the General Meeting of Shareholders makes a decision to dissolve the company, the public Securities Investment Company must send the State Securities Commission the dossier to request the approval of opening the procedure for company dissolution as follows:

a) Certificate to request the dissolution of the public securities investment company;

b) The meeting minutes together with the decision of the General Meeting of Shareholders on the company dissolution;

c) Plan for dealing with liabilities and assets attached to the list of creditors including the name and address of the creditor, type of debt, amount of debt of each creditor, the structure of the company's assets and roadmap of asset liquidation.

5. Within 15 days from the date of receiving complete and valid dossier under the provisions of Clause 4 of this Article, the State Securities Commission shall send written approval for the opening of procedure of liquidation and dissolution of the public securities investment company. In case of refusal, the State Securities Commission must refuse in writing, stating the reasons therefor.

6. The order and procedure for dissolution of the public Securities Investment Company shall comply with the guidance of the Ministry of Finance.

Article 85. Revocation of license of establishment and operation of the public securities investment company.

1. The public Securities Investment Company is withdrawn license of establishment and operation in the following cases:

a) Dossier to request the issuance of license of establishment and operation has false information, falsifying the conditions on establishment of the company as stipulated in Article 79 of this Decree;

b) Failing to deploy the activities of securities investment within 12 months from the date of issuance of license of establishment and operation;

c) Being dissolved, consolidated, merged into another public securities investment company.

2. The State Securities Commission shall announce the revocation of the license of establishment and operation of the public Securities Investment Company on the website of the State Securities Commission.

3. Right after having the decision to withdraw the license of establishment and operation of the State Securities Commission, the Board of Directors of the public securities investment company, the Fund Management Company and custodian bank shall carry out the procedure for liquidation and dissolution as prescribed by law.

Article 86. Changes must be approved

1. The change of name, change of the Fund Management Company and custodian bank the public Securities Investment Company  must be approved by the State Securities Commission.

2. Dossier to request the approval for the changes stipulated in Clause 1 of this Article including:

a) The request for approval of the change;

b) The meeting minutes and decision of the General Meeting of Shareholders approving the changes prescribed in Clause 1 of this Article.

c) The relevant documents as stipulated in Clause 1 of this Article. In case of change of Fund Management Company or custodian bank, the public Securities Investment Company must supplement the commitment of these organizations on the handover of rights and obligations to the fund management company, custodian bank instead.

3. Within 15 days after receipt of complete and valid as prescribed in Clause 2 of this Article, the State Securities Commission shall send a written approval for the changes of the public Securities Investment Company . In case of refusal, the State Securities Commission shall reply in writing stating the reasons therefor.

SECTION 2. INDEPENDENT SECURITIES INVESTMENT COMPANY

Article 87. Conditions for establishment of independent securities investment company

1. The conditions for the issuance of license of establishment and operation of the independent Securities Investment Company entrusting capital management include:

a) Meeting the provisions at Point a, c, d and dd, Clause 1, Article 79 of this Decree;

b) There is a maximum of ninety-nine (99) shareholders, excluding professional securities investor. In particular, each shareholder as an organization must contribute a minimum of VND 03 billion and individual shareholder must contribute at least VND 01 billion.

2. The conditions for the issuance of license of establishment and operation of the independent Securities Investment Company managing capital by itself include:

a) Meeting the provisions at Point a, Clause 1, Article 79 and Point b, Clause 1 of this Decree;

b) The assets must be deposited at the depository bank.

c) The domestic shareholders of the independent Securities Investment Company must be a credit institution or securities business organization or insurer or member of the Board of Directors, the Director (General Director), Deputy Director (Deputy General Director), of the company expected to be established.

d) The Director (General Director), Deputy Director (General Director), professional staff must have at least 05 years of experience in asset management activities and investment analysis with certificate of fund management practice or international certificates as prescribed by the Ministry of Finance.

Article 88. Dossier, order and procedure to issue license of establishment and operation to the independent Securities Investment Company

1. Dossier to request the issuance of license of establishment and operation to the independent Securities Investment Company includes:

a) The request for the issuance of license of establishment and operation together with the written authorization to the Fund Management Company or shareholder’securities representative to complete the legal procedure for the establishment of the independent securities investment company;

b) Confirmation of bank on the rate of contributed capital deposited at the escrow account opened at the bank;

c) The meeting minutes together with the resolution of the shareholders concerning the establishment of the independent securities investment company;

d) The depository draft contract, draft contract of investment management (if any);

dd) The charter of the independent Securities Investment Company and the Prospectus;

e) The list of shareholders as stipulated in Point c, Clause 2 of Article 79 of this Decree together with copy of identity card, valid passport and curriculum vitae of the shareholders and authorized representative of the shareholders is an organization, member of the the Board of Directors, the Director (General Director), Deputy Director (Deputy General Director) and the following documents:

For shareholder as an organization: A valid copy of license of establishment and operation, certificate of business registration (if any) or equivalent documents, the meeting minutes and decisions of the General Meeting of Shareholders , the Board of Directors or Board of members or company owner concerning the capital contribution to establish the independent Securities Investment Company and the appointment of an authorized representative of the contributed capital together with the written authorization.

For foreign shareholder: Adding documents to verify that the foreign shareholder has investment capital account opened at commercial bank in Vietnam and having registered securities trading code.

For independent member of the Board of Directors: The commitment to the independence as stipulated in Clause 1, Article 80 of this Decree.

g) In case of a capital management company itself, supplementing the copy of certificate of fund management practice or international certificates of Director (General Director), Deputy Director (Deputy General Director) and other professional staff, the principle contract headquarters lease or decision on space and headquarters handover of the owner together with document certifying the ownership and use right of the lessor or the owner (if having headquarters).

2. Documents issued by the foreign competent State authority shall comply with the provisions in Clause 2, Article 72 of this Decree.

3. Dossier to register the establishment of the independent Securities Investment Company as stipulated in Clause 1, Article 2 shall be made in one (01) original set and sent to the State Securities Commission.

4. Within 30 days after receipt of complete and valid dossier as prescribed in Clause 1 of this Article, the State Securities Commission shall issue the license of establishment and operation to the independent securities investment company. In case of refusal, the State Securities Commission shall reply in writing stating the reasons therefor.

5. The fund management company, the shareholder’s representative of the company must be responsible for the completeness, accuracy and validity of the dossier. Within 03 days from the date of detecting flaws or new facts arising that affect the contents of the documents submitted, the Fund Management Company or shareholder’s representative must report to the State Securities Commission. The written amendment and supplement must be signed by those who have signed in the dossier or of those who have the same titles with the above mentioned persons.

6. Immediately after the State Securities Commission issues the license of establishment and operation, the independent Securities Investment Company shall be released the entire contributed capital of the shareholders at the depository bank to transfer to the Fund Management Company to conduct the transfer of ownership of the assets contributed to the company as prescribed by regulation of enterprise law and guidance of the Ministry of Finance.

7. Within 10 days after the State Securities Commission issue the license of establishment and operation, the independent Securities Investment Company  must complete the formulation of the register of shareholders and certify the ownership of shares to shareholders.

Article 89. Operation of the independent Securities Investment Company

1. The operation of the independent Securities Investment Company must ensure:

a) The compliance with the provisions in Clause 1, 2, Article 81 of this Decree.

b) Not being permitted to participate in building, deployment and development of real estate project.

c) Being permitted to carry out unrestricted investment in types of stock, real estate and other assets meeting conditions to be put into business as prescribed by the relevant law.

2. The Ministry of Finance shall guide the dissolution, consolidation, merger, change of name, change of depository bank, change of fund management company, change of management personnel, amendment of company charter , reporting regime, detail of investment activities of the independent securities investment company.