Chương II Thông tư 227/2012/TT-BTC: Công ty đầu tư chứng khoán đại chúng

Chapter II

PUBLIC INVESTMENT COMPANIES

Section 1. Company establishment

Article 4. Registering the offerings and stock issues of public investment companies

1. The public offerings and issues of shares of an investment company include initial public offering for raising capital to establish the company, and issues of additional shares to increase capital.

2. The initial public offering must be registered with the State Securities Commission by the asset management company, and comply with the following regulations:

a. The total value of offered shares reaches at least 50 billion VND;

b. The asset management company has enough capital as prescribed by laws on the establishment, organization and operation of asset management companies; is not put under the control, special control, suspension, termination, amalgamation, merger, dissolution, or bankruptcy;

c. The asset management company does not omit to implement the decision on penalties for the violations against the regulations on securities made by competent State agencies, and to relieve the consequences.

3. The issue of additional shares of the investment company must be registered with the State Securities Commission, via the asset management company, and comply with the following regulations:

a) Satisfy the conditions in Clause 1 and Clause 2 Article 94 of the Law on Securities;

b. Have plans for the issues and capital used passed by the latest General meeting of shareholders of the investment company. The passed plan must consist of the following contents:

- The information about the ratio of call options; the rules and methods for determining issuing prices; the stock dilution after the issue; the method for determining issue prices; the ratio of successful issue, or the minimum amount collected from the issue, and the solutions when the issue does not succeed or the amount collected is not adequate as anticipated; the criteria for selecting investors to issue, and the method for determining the issue conditions if the shares additionally issued are not completely distributed;

- Information about the plan for using capital; the targets, plans, and disbursement roadmap (if any);

c) The issue dossier, the issue time, the specific issue prices, the criteria and subjects of offering, if the call options are not completely distributed, must be passed by the Board of Directors of the investment company;

d) Shares are only issued to the existing shareholders of the investment company by issuing call options. The call option on transferable shares. Where existing shareholders fail to exercise their call options, the investment company may offer them to other investors.

4. The documentation, order, and procedure for registering public offerings of investment companies must comply with Article 78 of the Decree No. 58/2012/ND-CP. The registration form for public offerings and issues of additional shares is provided in Annex 01 enclosed with this Circular.

5. The application for the issue of additional shares includes:

a) The papers prescribed in Point a, Point b, Point c Clause 1 Article 78, and other relevant papers prescribed in Article 82 of the Decree No. 58/2012/ND-CP;

b) The meeting minutes and resolution of the General meeting of shareholders of the investment company, approving the offering of additional shares, plan for issue and capital use; the meeting minutes and resolution of the Board of Directors of the investment company, approving the application for offering, and the contents prescribed in Point c Clause 3 of this Article;

c) The Financial statements of the year succeeding the year in which the issue of additional shares is requested, which is audited by an accredited audit organization; the profit of the investment company in that year must be a positive number.

6. The application for issuing additional shares of the securities company prescribed in Clause 5 of this Article shall be made into 01 original dossier, enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

7. Within 30 days from the date on which the complete and valid dossier is received as prescribed in Clause 5 of this Article, the State Securities Commission shall issue the Certificate of additional share issues registration to the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

8. The asset management company is responsible for ensuring that the information in the application is accurate and unequivocal, and the all important contents that affect the decision making of investors are provided. While the application is being examined, the asset management company shall update and revise the application if inaccurate information is detected, or new important information is provided, or mandatory information is omitted, or explanation for confusing issues is necessary. The written revision must bear the signatures of the persons that signed the application, or of the persons that hold the same positions as such signers, or of the legal representative of the company.

When the investment company issues additional shares, the asset management company and the Board of Directors of the investment company are jointly responsible for the accurate application. In this case, the revision of the application and information must be announced by the asset management company as prescribed in Clause 10 Article 3 of this Circular.

9. While the State Securities Commission is examining the application, the asset management company, the Board of Directors of the investment company, and relevant persons may only accurately use the information in the prospectus sent to the State Securities Commission for market survey. It is required to note that all information is just anticipated. This information must not be provided on the mass media.

10. The Certificate of Share offering registration, the Certificate of Additional share issue registration issued by the State Securities Commission are the documents certifying that the application for offering and application for issue of additional shares of the securities company are satisfactory as prescribed by law.

Article 5. Offering and distributing shares of public investment companies

1. The public offering of the investment company is only made after the State Securities Commission issues the Certificate of Share offering registration.

2. Within 07 days from the date on which the Certificate of Offering registration takes effect, the asset management company shall send the State Securities Commission, and announce, the offering notice as prescribed in Clause 10 Article 3 of this Circular. The offering notice must contain the information in the template provided in Annex 02 enclosed with this Circular.

3. The asset management company, distributor, and underwriter (if any) must distribute share of the investment company fairly and openly, provide at least 20 days for investors to register share purchase. This period must be written in the offering notice.

Where the number of registered call options exceed the number of offered shares, the asset management company must distribute all the offered shares to investors in proportion to their registered call options.

4. All capital contributed by investors must be deposited in a separate account opened at a supervisory bank, and unblocked after the effective date of the License for establishment and operation of the Investment company. The supervisory bank is responsible for paying the investment company an interest equal to at the effective interest rates on demand deposits while the capital is blocked.

5. The asset management company must finish distributing shares of the investment company within 90 days from the effective date of the Certificate of Public offering registration. If the distribution cannot be done within this period, the asset management company shall send a written request to the State Securities Commission for considering extending the deadline for share distribution.

Within 07 days from the date on which the request from the asset management company is received, If the State Securities Commission shall consider extending the deadline for share distribution, but must not exceed 30 days. The refusal must be notified and explained in writing by the State Securities Commission.

6. Within 03 days from ending day of the offering, or from the expiry date of the Certificate of Offering registration, the asset management company and the Board of Directors of the investment company must notify the State Securities Commission, and disclose the information about the ineligibility for establishment of the investment company in accordance with Clause 10 Article 3 of this Circular, in one of the following cases:

a. Fewer than 100 investors purchase stocks, not including professional securities investors; or

b. The raised capital is lower than 50 billion VND, or lower than the minimum anticipated capital as prescribed in the charter of the investment company (if any).

7. Where the conditions for establishing an investment company prescribed in Clause 6 this Article is not satisfied, within 15 days from the ending day of the offering or from the expiry date of the Certificate of Offering registration, the asset management company must refund all the contributions to investors, including the arising interest (if any), and incur the costs of raising capital.

8. The suspension and cancellation of offerings must comply with Article 22 and Article 23 of the Law on Securities.

9. Where additional shares are issued to increase capital, the order and procedure for announcing the issue and distribution of call options must comply with Clauses 1, 2, 3, 4, and 5 of this Article, and other relevant regulations of law on securities and enterprises, applicable to listed organizations.

Article 6. The conditions, documentation, order, and procedure for establishing public investment companies

The conditions, documentation, order, and procedure for establishing investment company are specified in Article 79 of the Decree No. 58/2012/ND-CP. The applications for Licensing investment companies and summary reports on offerings are made in accordance with the form in Annex 06 and Annex 23 enclosed with this Circular.

Article 7. Certifying ownership of shares

1. Within 05 days from ending day of the offering, or from the effective date of the License for establishment and operation of the investment company, asset management company and the Board of Directors of the investment company shall verify the shareholders’ ownership of the purchased shares, and make a shareholder Register with the following contents:

a) The name and address of the head office of the asset management company; name and address of the head office of the supervisory bank; full name, abbreviated name, English name (if any) of the investment company; the ticker symbol if the investment company (if any);

b) The total amount of offered shares; the amount of sold shares, and the capital raised;

c) The list and information about the ownership of stockholders according to the template in Annex 15 enclosed with this Circular;

d) The date of the Shareholder Register.

2. The information in the Shareholder Register is the proof of the shareholders’ ownership of shares.

3. The asset management company and the Board of Directors of the investment company shall register and deposit stocks of the investment company in accordance with laws on securities depository and registration.

Article 8. Listing shares

1. Within 30 days from the effective date of the License for establishment and operation or the revised License for establishment and operation of the investment company, the asset management company and the Board of Directors of the investment company shall complete the documentation and list the shares of the investment company at the Stock Exchange as prescribed by law.

2. The investors applying for buying shares of the investment company are considered approving this listing. Where the charter and the prospectus allows, opinions from the General meeting of shareholders about the initial listing and additional listing of the investment company are exempt.

3. Clause 1 and Clause 2 of this Article are applicable to the listing of shares issued for swapping during the amalgamation and merger of investment companies.

Section 2. INVESTMENTS MADE BY PUBLIC INVESTMENT COMPANIES

Article 9. List and investments made by public investment companies

1. Investment companies must comply with the regulations on operation in Article 81 of the Decree No. 58/2012/ND-CP.

2. Investment companies may invest in the following financial assets in Vietnam:

a. Depositing money in commercial banks as prescribed by laws on banking;

b. Money market instruments, including valuable papers and transfer instruments according to the regulations on banking;

c. Government bonds, bonds guaranteed by the Government, and municipal bonds;

d. Listed shares, registered shares, and bonds listed at the Stock Exchange;

dd. Unlisted shares, unregistered shares of public companies; unlisted bonds of issuers operating under Vietnam’s law; shares of joint-stock companies that are not public companies, and capital contributions in limited liability companies;

e. Other securities as prescribed by law and guidance from the Ministry of Finance.

3. Investment companies may send money and make investments in the money instruments prescribed in Point a and Point b Clause 2 of this Article at the commercial banks accepted by the Board of Directors.

4. The investment portfolio structure of investment companies must comply with their charters, and:

a. Do not invest in more than 15% of the total value of circulating securities of an issuer, except for Government bonds;

b. Do not invest in more than 20% of the total asset value of the investment company in the securities and assets, as prescribed in Point a and Point b Clause 2 of this Article, that are issued by the same organization, except for Government bonds;

c. Do not invest in more than 30% of the total asset value of the investment company in the assets, as prescribed in Points a, b, d, dd and e Clause 2 of this Article, that are issued by the same organization or the same group of companies;

d. Do not invest in more than 10% of the total asset value of the investment company in the real estate or primary assets, as prescribed in Point dd Clause 2 this Article;

dd. Do not use capital and assets of investment companies to give loans or guarantee loans, except for investing deposit prescribed in Point a Clause 2 of this Article; do not use assets of investment companies to take consumer loans, trade securities on margin, giving loans of assets for selling, giving loans of securities for selling (short selling);

e. Do not make investment in the shares of that investment company, in the securities investment funds nor in other investment companies established and operated in Vietnam;

g. Where an investment company is a foreign investor as prescribed in Clause 8 Article 3 of this Circular, when making investments, it must comply with the regulations on ownership limits applicable to foreign investors.

5. Investment companies must not take loans to sponsor their activities, except for short-term loans to defray necessary expenses. The total value of short-term loans taken by an investment company must not exceed 5% of its net asset value at any time, and the longest loan term in 30 days.

6. Except for the cases prescribed in Point dd, e, and g Clause 4 of this Article, the investment mechanism of an investment company may not vary more than 15% of the investment limits prescribed in Clause 4 of this Article, and only the following reasons are acceptable:

a. The fluctuation of market prices of the assets in the investment portfolio of the investment company;

b. The lawful payments made by the investment company;

c. The amalgamation, merger, treasury stocks, and public offers to buy securities of issuers;

d. The investment companies that are licensed, have adjusted capital, or amalgamated, or merged with other investment companies within 06 months from the effective date of the License for establishment and operation or of the adjusted License for establishment and operation of the investment company;

dd. The investment company is undergoing liquidation for dissolution.

7. Within 03 months from the date on which the variances due to the reasons prescribed in Point a, b, and c Clause 6 of this Article, the asset management company must finish adjusting the investment portfolio of the investment company to make it conformable Clause 4 of this Article.

8. Where variances occur due to the non-conformity or the asset management company to the investment limits as prescribed by law or the charter of the investment company, the asset management company must adjust the investment portfolio within 15 days from the date on which the variances occur.  The asset management company must pay compensation to the investment company (if any) and incur the costs related to the adjustment of the investment portfolio. All profits generated must be recorded for the investment company.

9. Within 05 days from the date on which the adjustment of the investment portfolio is done, the asset management company must disclose the information as prescribed in Clause 10 Article 3 of this Circular, and notify the State Securities Commission of the variances, the reasons and the time when they occur or are detected, the damage, and the compensation paid to the investment company (if any), or the generated profits of the investment company (if any), the remedial measures, the remedy period, and the remedy result. The notification must be certified by the supervisory bank.

10. When making asset transactions for the investment company, the asset management company must comply with the following regulations:

a. For the securities listed and registered at the Stock Exchange, the transactions must be made via the transaction system of the Stock Exchange;

b. For the assets not being listed or registered securities, or not mentioned in agreements, the asset management company must obtain written consent from the Board of Directors of the investment company to the range of prices, the time of transactions, the partners, or the forbidden partners (if any), and the transacted assets before transactions are made.

Article 10. Net asset value

1. The asset management company shall determine the net asset value of the investment company and net asset value per share of the investment company at least once per week, in particular:

a. The net asset value of the investment company is the total asset value minus the its debt. The total asset value of the investment company is market prices or reasonable values of assets (if market prices are not determined). The total debt of the investment company is the debts of payables of the investment company up to the day before the valuation day. The method for determining market prices and reasonable values of assets in the portfolio, values of debts, and payables is specified in Annex 07 enclosed with this Circular, and the internal regulation in the valuation book;

b. The net asset value per share equals the net asset value of the investment company divided by the total number of shares outstanding.

2. The asset management company must compile a valuation book which specifies:

a. The rules and criteria for selecting and changing quotation providers. These rules must be specified in the charter of the investment company;

b. The rules, process, and methods for valuation in conformity with law, the charter of the investment company, and passed by the General meeting of shareholders of the investment company. The rules, process, and methods for valuations must be clear, reasonable,  and conformable with international practice in order to be uniformly applied in different market conditions.

3. The valuation book must be passed by the Board of Directors of the investment company, and provided for the supervisory bank for verifying the net asset value. The list of at least 03 quotation providers, that are not relevant to the asset management company and the supervisory bank, must also be passed by the Board of Directors of the investment company.

4. The net asset value of the investment company and the net asset value per share must be verified by the supervisory bank. The verification must be made in writing, or accessed via the electronic information system of the supervisory bank which is approved by the asset management company. On the next working day, after the supervisory bank makes the verification, the information about the net asset value of the investment company and net asset value of per share must be verified by the supervisory bank may be disclosed as prescribed in Clause 10 Article 3 of this Circular.

5. The asset management company may authorize the supervisory bank to determine the net asset value of the investment company and net asset value per share must be verified by the supervisory bank. In this case, the asset management company and the supervisory bank must adopt a mechanism and process for comparison, inspection, and supervision in order to ensure that the determination of net asset values is conformable with laws, and the net asset values are accurately calculated.

6. If the values are incorrectly calculated, within 24 hours from the detection, the supervisory bank or the asset management company (in case the supervisory bank provides net asset value determination services) must notify and request the asset management company or supervisory bank to adjust it.

7. Within 05 days from the date on which the incorrect net asset value is detected, the supervisory bank or the asset management company (in case the supervisory bank provides net asset value determination services) must adjust and disclose the information in accordance with Clause 10 Article 3 of this Circular, and notify the State Securities Commission of the incorrect valuation, including the reasons, the time, and handling measures. The notification must be signed by both asset management company and supervisory bank.

Article 11. Paying dividends of public investment companies

1. Investment companies may pay dividends to their shareholders according to the profit distribution policy prescribed in their charter, and the distribution plan passed by the latest General meeting of shareholders. The dividends paid to shareholders are extracted from the profit in the period, or from the cumulative profit after all funds are established (if any) according to the charter, and all tax liability and financial obligations are fulfilled (if any) as prescribed by law.

2. Dividends may be paid in cash or by additional shares. At least 15 days before the date on which dividends are distributed, the asset management company must notify all investors. The Notice of dividend payment must contain the information in Annex 22 enclosed with this Circular.

3. The payment of dividends of investment companies must ensure that:

a. It is conformable with the profit distribution policy prescribed in the charter of the securities company, the prospectus, and the summary prospectus;

b. It is done after the investment company has fulfilled all tax liability and other financial obligations as prescribed by law, and established all funds prescribed in its charter (if any);

c. After the payment, the securities company is still able to pay the due debts and other financial obligations, and the net asset value does not fall below 50 billion VND;

d. The dividend rates are decided by the General meeting of shareholders or the Board of Directors of the investment company, in accordance with the investment targets and its charter applicable to the profit distribution policy.

Section 3. THE GENERAL MEETING OF SHAREHOLDERS AND THE BOARD OF DIRECTORS OF A PUBLIC INVESTMENT COMPANY

Article 12. Rights and obligations of shareholders

1. Shareholders have the following rights and obligations:

a. The right to fair treatment. Each share brings its holder equal rights, obligations, and interests;

b. The right to free transfer of shares, unless the transfer is restricted as prescribed by law and the charter of the investment company;

c. The right to receive all periodic and irregular information about activities of the investment company;

d. The right and obligation to attend meetings of the General meeting of shareholders, and to vote directly or via a representative or from a distance;

dd. b. The obligation to pay for the shares within the period prescribed in the charter of the investment company, the prospectus, and the responsibility for the financial obligation of the investment company within the paid amount when buying shares;

e. Other rights and obligations as prescribed by laws on securities and the charter of the investment company..

2. The shareholders or groups of shareholder that own more than 10% of the shares outstanding for at least consecutive 06 months, or a smaller proportion prescribed in the charter, have the rights to:

a) Suggest persons for the Board of Directors. The order and procedure for suggestion are specified in relevant laws on enterprises and securities applicable to public companies;

b) Consider and make copies of the records and resolutions of the Board of Directors, annual financial statements, and reports of the supervisory bank on activities of the investment company;

c) Request the asset management company to convene irregular meetings General meeting of shareholders in the following cases:

- There is evidence that the asset management company or supervisory bank violates the rights of shareholders, obligations of the asset management company, the supervisory bank, or make decisions beyond the authority which is prescribed in the charter of the investment company, the supervision contract, or delegated by the General meeting of shareholders, and cause damage to the investment company;

- The tenure of the Board of Directors (06 months) is over, and no voting is held;

- Other cases prescribed in the charter of the investment company.

d) Request the asset management company and supervisory bank to explain the unusual issues related to the assets, the management, and transactions of assets of the investment company. The asset management company and supervisory bank must send written reply to the shareholder within 15 days from the date on which written request is received.

dd) Suggest bringing issues to the meeting of the General meeting of shareholders. Suggestions must be made in writing and sent to the asset management company at least 03 working days before the opening date, unless otherwise prescribed by the charter of the investment company;

e) Other rights and obligations as prescribed by the charter of the investment company.

3. Requests and suggestions made by shareholders or groups of shareholders as prescribed in Clause 2 of this Article must be made in writing and contain the full names addresses, ID numbers, passport numbers, or numbers of other ID papers, applicable to individuals; name and address of the head office, nationality, number of the decision on establishment, or number of business registration, applicable to organizations; the holding, and the time of holding of each shareholders, the amount of shares of the whole group, and the ownership proportion of the shares outstanding of the investment company; the contents, the foundations, and the reasons. When convening the irregular General meeting of shareholders as prescribed in Point c Clause 2 of this Article, it is required to provide the documents verifying the reasons for convening the irregular General meeting of shareholders; or the documents, proof about the violations committed by the asset management company or supervisory bank, the extent of violations, or the decisions beyond their authority as prescribed in the charter of the investment company or the supervision contract.

Article 13. The General meeting of shareholders

1. The General meeting of shareholders of an investment company is convene by the asset management company, and shall decide:

a. The revisions of the charter of the investment company and the supervision contract;

b. The changes of the investment policies and targets, the ownership ratio of foreign investors in the investment company; the changes of the profit distribution plan; the increase of the payment to the asset management company and supervisory bank; the replacement of the asset management company and supervisory bank;

c. The merger, amalgamation, dissolution, capital increase; and expansion of the operation of the investment company;

d. The approval for the contracts and transactions between the investment company and the shareholders that own more than 35% of shares outstanding, their representatives, and members of the Board of Directors of the investment company. In this case the shareholders having relevant benefits must not vote. The contracts and transactions are approved when a number of shareholders that represent at least 65% of the votes agree;

dd. The election and dismissal of the President and members of the Board of Directors; the wages and operating cost of the Board of Directors; the selection of the accredited audit organization to audit annual financial statements, and the selection of independent valuation organizations (if any); and the approval for the Financial statements, the annual reports on assets and operation of the investment company;

e. Examine and handle the violations committed by the asset management company, the supervisory bank, and members of the Board of Directors that cause damage to the investment company.

g. Other issues within its authority as prescribed by laws on enterprises, securities, and by the charter of the investment company.

2. The agenda of the General meeting of shareholders is established by the asset management company in accordance with laws on enterprises. The annual General meetings of shareholders shall be held within 30 days from the date on which the annual financial statement audited by an accredited audit organization is available.

3. The asset management company shall convene irregular the General meetings of shareholders of the investment company in the following cases:

a. At the request of the supervisory bank, or the Board of Directors of the investment company finds it necessary for the benefits of the investment company;

b. At the request of shareholders or groups of shareholders as prescribed in Clause 2 Article 12 of this Circular;

c. Other cases prescribed in the charter of the investment company.

4. The irregular General meeting of shareholders shall be held within 30 days from the date on which the asset management company receives the request for convening the irregular General meeting of shareholders. At least 15 days before the General meeting of shareholders, the asset management company must send the State Securities Commission the meeting agenda and relevant documents, and provide information about the irregular General meeting of shareholders, specifying the reasons and targets of the meeting.

5. Where the asset management company fails to convene the General meeting of shareholders of the securities company as prescribed in Clause 3 and Clause 4 of this Article, the asset management company shall take responsibility before law, and pay compensation for the damage to the investment company (if any). Where the asset management company fails to convene the General meeting of shareholders of the securities company as prescribed in Clause 3 within the next 30 days, the Board of Directors or supervisory bank shall convene the General meeting of shareholders as prescribed in this of this Circular, in lieu of the asset management company.

Article 14. The conditions and procedures for holding meetings and passing  decisions of the General meeting of shareholders

1. The asset management company shall formulate and post the conditions and procedure for convening, opening meetings, and passing decisions at the General meeting of shareholders of the investment company in accordance with the laws on enterprises and the charters of the investment company, including:

a) The notice of convening the general meeting, specifying the deadline for sending notices and receiving votes when seeking written opinions from shareholders; and the procedure for registering for attending the general meeting;

b) The procedure for voting, counting votes, and announcing vote results;

c) Making and passing the Minutes of the General meeting of shareholders; disclosing the resolution of the General meeting of shareholders; the procedure for raising protests against the resolution of the General meeting of shareholders.

2. The General meeting of shareholders of the investment company shall be opened when it is attended by a number of shareholders that represent at least 51% of the shares outstanding. the participation may be direct, authorized, or online via communication devices according to the charter of the investment company.

3. The decisions of the General meeting of shareholders shall be passed they are approved by a number of shareholders that represent at least 65% of the total shares held by the participants

4. Where the first meeting is not able to be opened as prescribed in Clause 2 of this Article, the second one shall be convene within 30 days from the anticipated opening day of the first one. In this case the General meeting of shareholders shall be held regardless of the number of participants.

5. Unless the annual General meeting of shareholders or General meeting of shareholders is to seek opinions on the issues prescribed in Points b, c, and d Clause 1 Article 13 of this Circular, the asset management company may obtain written opinions from the shareholders of the investment company, instead of holding the General meeting of shareholders. The rules, order, and procedure for seeking written opinions must be specified in the charter of the investment company, and conformable with the principles in the laws on enterprises. In this case, the asset management company must abide by the deadline for sending meeting documents and forms in a similar way to convening the General meeting of shareholders.

6. When seeking written opinions of the General meeting of shareholders, the decisions of the General meeting of shareholders shall be passed they are approved by a number of shareholders that represent at least 75% of the total number of votes.

7. The asset management company and the Board of Directors of the investment company shall examine and ensure that all resolutions of the General assembly of shareholders of the investment company are conformable with law and the its charter.  Where a decision of the General assembly of shareholders is not conformable with law and the charter of the investment company, a General meeting of shareholders shall be held to seek opinions, or written opinions shall be obtained.

8. Within 07 days from the ending day of the General assembly of shareholders, or after finishing obtaining written opinions as prescribed in Clause 5 of this Article, the asset management company shall send the record and the resolution of the General assembly of shareholders to the investment company, the supervisory bank, and provide information to shareholders as prescribed in Clause 10 Article 3 of this Circular.

Article 15. The Board of Directors of a public investment company

1. The Board of Directors of a public investment company must comply with Article 80 of the Decree No. 58/2012/ND-CP.

2. The Board of Directors of a public investment company must have:

a. At least an independent member proficient and experienced in accounting and audit.

b. At least an independent member proficient and experienced in asset management or securities investment analysis;

c. At least a member proficient in law.

3. The Board of Directors of a public investment company has the following rights and obligations:

a) To represent the interests of shareholders; carry out activities in accordance with laws to protect the interests of shareholders;

b) To approve the valuation book, the list of quotation providers as prescribed in Clause 3 Article 10 of this Circular, the list of banks that receive deposits from the investment company as prescribed in Clause 3 Article 9 of this Circular; to accept the transactions prescribed in Point b Clause 11 Article 9 of this Circular; to approve the application for the issue of additional shares, and relevant contents within the authority delegated;

c) To decide the dividends according to the profit distribution plan prescribed in the charter of the investment company, or passed by the General assembly of shareholders; the time and method of profit distribution;

d) To decide the issues that are not agreed by both the asset management company and the supervisory bank according to law;

dd) To request the asset management company and the supervisory bank to provide adequate documentation and information about the asset management and supervision; and exercise other rights and obligations as prescribed by the laws on securities and company administration, applicable to public companies, and the and in accordance with the charter of the investment company;

e) Other issues within the authority as prescribed by laws on enterprises, securities, and by the charter of the investment company.

4. Board of Directors meetings shall be held when they are attended by at least 2/3 of the members, the number of independent members among which must make up the at least 51% of the participants. The members that do not attend the meeting directly may vote in writing. The decisions of the Board of Directors shall be passed when they are approved by the majority of members and the majority of independent members.

Section 4. MANDATORY CHANGES AND RESTRUCTURING

Article 16. Increase and decrease of charter capital, and the mandatory changes of the public investment company

The increase and decrease of charter capital, and the mandatory changes of the investment company must comply with Article 82 and Article 86 of the Decree No. 58/2012/ND-CP, and other relevant law regulations.

Article 17. The amalgamation and merger of public investment companies

1. Apart from the principles in Clause 1 Article 83 of the Decree No. 58/2012/ND-CP, the amalgamation and merger of investment companies must ensure that:

a. The information about the amalgamation and merger is promptly, adequately, and accurately provided for shareholders by the asset management company and the Board of Directors of the investment company;

b. The interests and obligations are settled according to the agreements among the parties in a voluntary and lawful manner.

2. The shareholders that protest against the amalgamation or merger are entitled to request the investment company to repurchase their shares. The repurchase price shall be agreed by both parties based on the net asset value per share at the repurchase time. The creditors are entitled to request the investment company to repay the loans before the amalgamation or merger.

3. Within 60 days from the date on which the General assembly of shareholders of last the investment company in the amalgamation or merger passes the decision on the amalgamation or merger, the investment company shall send the State Securities Commission a written request for the issue or the adjustment of the License for establishment and operation of the transferee company.

4. The documentation, order, and procedure for the issue or adjustment of the License for establishment and operation of the transferee company must comply with Clause 2 and Clause 3 Article 83 of the Decree No. 58/2012/ND-CP. The amalgamation or merger plan, and the amalgamation or merger contract must comply with the templates in Annex 09 and 10 enclosed with this Circular.

5. The amalgamation or merger date is the day on which the License for establishment and operation or the adjusted License for establishment and operation takes effect. From that day:

a. The transferor companies no longer exist, and the transferee company shall inherit all assets, debts, lawful rights and interests, and other obligations from the transferor companies.

b. Shareholders of the transferor companies shall receive assets in the form of shares from the transferee company at the conversion rate determined on the amalgamation or merger date;

c. The shares of the transferor companies shall be annulled on the amalgamation or merger date.

6. Within 07 days from the amalgamation or merger date, the asset management company shall disclose the information about the completion of the amalgamation or merger as prescribed in Clause 10 Article 3 of this Circular. The information disclosed includes:

a) The amalgamation or merger date;

b) The rules for determining the net asset value per share of the transferor companies on the amalgamation or merger date; the conversion rate, and the par value per share (if any).

7. From the amalgamation or merger date, the supervisory bank is responsible for:

a. Receiving all the books, documentation, list of securities, and other assets relevant to the transferor companies;

b. Receiving and inheriting all the lawful rights and interests, financial obligations, debts including tax debts, and the outstanding economic contracts from the transferor companies;

c. Completing the procedure for registering the ownership of the assets received from the transferor companies as prescribed by law;

d. Fulfilling the obligations of the transferor companies on behalf of the transferee companies as prescribed by law.

8. The public investment company shall report the amalgamation and merger results in accordance with Clause 4 Article 83 of the Decree No. 58/2012/ND-CP. The report on the amalgamation or merger results shall be made in accordance with the templates in Annex 12 enclosed with this Circular.

Article 18. Extending the deadline for operation and dissolution of public investment companies

1. The extension of the operating period of an investment company must comply with the following regulations:

a) The extension of the operating period of the investment company is passed by its General assembly of shareholders;

b) The net asset value of the investment company on the latest valuation date, before the extension application is submitted, does not fall below 50 billion VND.

2. The asset management company shall apply for the extension at least 30 days before the operating period of the investment company is over. The application for the extension of the operating period of an investment company must include:

a) The notice of the extension of the operating period of the investment company according to the template in Annex 13 enclosed with this Circular;

b) The Minutes and Resolution of the General meeting of shareholders of the investment company on the extension of its operating period, specifying the extension length.

c. The contract signed with the supervisory bank to keep providing depository and supervisory services for the investment company;

d) The detailed investment portfolio and report on the net asset value of the investment company (certified by the supervisory bank) on the latest valuation date.

3. The application for the extension of the operating period of the investment company shall be made in 01 original dossier, enclosed with computer files.  The original dossier shall be sent to the State Securities Commission directly or by post.

4. Within 15 days from the date on which the complete and valid dossier is received as prescribed in Clause 2 of this Article, the State Securities Commission shall issue the adjusted License for establishment and operation to the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

5. The investment company shall be liquidated and dissolved in the following cases:

a) Its net asset value falls below 10 billion VND in 06 consecutive months;

b) The cases prescribed in Clause 1 Article 84 of the Decree No. 58/2012/ND-CP.

6. The General meeting of shareholders may appoint an independent audit organization, as prescribed in Clause 3 Article 84 of the Decree No. 58/2012/ND-CP, to inspect, assess, and supervise the liquidation and valuation, verify the validation and the distribution of assets of the investment company among its shareholders; or to maintain the incumbent Board of Directors in order to supervise the liquidation and asset distribution.

7. The General meeting of shareholders shall decide the dissolution date of the investment company. From the date on which the dissolution decision is made, the asset management company and the supervisory bank may not:

a) Make investments and purchase assets for the investment company;

b) Transfer the non-guaranteed debts into debts guaranteed by the assets of the investment company;

c) Donate the assets of the investment company to other organizations and individuals;

d) Pay contracts in which the value of the obligations of the investment company is greater than the value of the obligations of the other party; or repay debts to the creditors that are debtors of the investment company without offsetting;

dd) Make other transactions for the purpose of selling assets of the investment company;

e) Other forbidden acts prescribed by the laws on enterprises.

8. The documentation, order, and procedure for requesting the State Securities Commission to initiate the dissolution of the investment company are specified in Clause 4 and Clause 5 Article 84 of the Decree No. 58/2012/ND-CP. The written request for the dissolution of the investment company is made in accordance with the template in Annex 13 enclosed with this Circular.

9. Within 24 hours after the written request for initiating the procedure for the liquidation and dissolution is made, the investment company, asset management company, and supervisory bank are responsible for providing information as prescribed in Clause 10 Article 3 of this Circular. Concurrently, the asset management company shall follow the procedure for delisting, canceling share registration under the guidance of the Stock Exchange and the Vietnam Securities Depository.

10. The asset management company and supervisory bank are responsible for liquidating and distributing assets of the investment company among its shareholders according to the plan passed by the General meeting of shareholders, ensuring the best interests of such shareholders  When a investment company is dissolved as prescribed in Point a Clause 1 Article 84 of the Decree No. 58/2012/ND-CP, the supervisory bank is responsible for liquidating and distributing assets of the investment company. The deadline for liquidating assets of the investment company is specified in the dissolution plan passed by the General meeting of shareholders, but must not exceed 02 year from the date on which the written approval for the liquidation and dissolution is obtained. While the investment company is liquidating its assets to for dissolution, the managing cost, supervising cost, and other costs shall be collected in accordance with the tariff passed by the General meeting of shareholders. After the dissolution, asset management company shall monthly provide shareholders with information about the payment rate per shareholder, the expenses arising in the period, the remaining net asset value of the investment company, the remaining net asset value per share, and the value of assets distributed to shareholders, according to the templates in Annex 17 enclosed with this Circular. The notice sent to shareholders must be provided to the State Securities Commission, together with the reports on assets and investment portfolio of the investment company, according to the template in Annex 18 enclosed with this Circular.

The liquidation result must be certified by the supervisory banks and the asset management company (if any), and approved by an independent audit organization or the Board of Directors.

11. The liquidation of assets being listed or registered share shall be carried out via the transaction system of the Stock Exchange, or using other methods, in order to ensure the best interests of the investment company, and the conformity with the dissolution plan passed by the General meeting of shareholders.

Where the liquidation is supervised by an independent audit organization or the Board of Directors as prescribed in Clause 6 of this Article, the sale of assets not being listed or registered shares must also be approved in writing by the independent audit organization or the Board of Directors (if any) according to Point b Clause 10 Article 9 of this Circular.

12. When written requests are made by shareholders, the asset management company or supervisory bank may transfer the portfolio to shareholders in proportion to their holdings in the investment company, on the following principles:

a) The portfolio transferred to shareholders must cover all assets in the portfolio of the investment company, and the structure of each asset is similar to the portfolio of the investment company according to the asset liquidation and distribution plan;

b) The assets being centrally deposited or registered shares shall be transferred to shareholders by the asset management company or supervisory bank, under the guidance of the Vietnam Securities Depository;

For other assets of which the ownership must be registered, the asset management company and the supervisory bank shall request the capital receiver, the issuer, and the organization in charge of the shareholder book to register the shareholders’ ownership of such assets. The payment is done after the shareholders’ ownership is registered.

13. The amount collected from the liquidation of the assets of the investment company and other assets shall be paid in the following order of priority:

a) The financial obligations to the State;

b) The amounts payable to the asset management company and supervisory bank, other amounts payables, and the dissolution expense.  Where the dissolution of the investment company is compulsory as prescribed in Point a and Point b Clause 1 Article 84 of the Decree No. 58/2012/ND-CP, the investment company may not pay the fees stated in the contract to the asset management company or supervisory bank from the day on which the event occurs;

c) The remaining assets shall be used to make payments to shareholders in proportion to their contributions to the investment company. In case asset ownership is registered, the asset management company and supervisory bank shall request the Vietnam Securities Depository, the organization in charge of the shareholder book, the issuer, the capital receiver (for capital contributions and non-deposited securities) to distribute and register the shareholders’ ownership of assets.

14. Within 05 working days from the ending day of the dissolution, the asset management company or the supervisory bank (in the absence of the asset management company) shall provide information about the completion of the liquidation, distribution, and dissolution of the investment company as prescribed in Clause 10 Article 3 of this Circular, and notify the dissolution result to the State Securities Commission, including the following documents:

a) The report, which is certified by the asset management company, the supervisory bank, the audit organization, or the Board of Directors (if any), on the liquidation of assets of the investment company, the debt repayment, and the fulfillment of other financial obligations to creditors, including financial obligations to the State, as prescribed in Annex 14 enclosed with this Circular. The report must be enclosed with the list of creditors and the amount of repaid debt, including tax debts;

b) The report, which is certified by the asset management company, the supervisory bank, the audit organization, or the Board of Directors (if any), on the liquidation process, the method of asset distribution and liquidation, the total asset value collected after the liquidation, the total debt payable, and the remaining assets for distributing to shareholders. Where assets distributed by the investment company are not cash, the documents must include the certification made by the Vietnam Securities Depository of the completion of share registration and distribution to shareholders at the request of the asset management company, the supervisory bank, and shareholders; the certification made by the organization in charge of the shareholder book, the issuer, and the enterprises that receive investments from the investment company, of the completion of the transfer of share ownership and capital contributions to each shareholders at the request of the asset management company;

c) The original License for establishment and operation of the investment company;

d) The report on verifying the asset liquidation, made by an audit organization appointed by the General meeting of shareholders, or made by the Board of Directors (if any).

15. In case the report on the dissolution result is not accurate and/or contain fabricated documents, the asset management company, the supervisory bank, relevant organizations and individuals shall be jointly responsible for paying the outstanding debts, and take personal responsibility before law for the consequences that arise within 03 years from the date on which the report is sent to the State Securities Commission.

Article 19. Revoking the License for establishment and operation of a public investment company

The revocation of the License for establishment and operation to a public investment company is specified in Article 85 of the Decree No. 58/2012/ND-CP.

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