Chương III Thông tư 227/2012/TT-BTC: Công ty đầu tư chứng khoán riêng lẻ

Chapter III

PRIVATE INVESTMENT COMPANIES

Section 1. THE ESTABLISHMENT OF PRIVATE INVESTMENT COMPANIES

Article 20. The establishment of private investment companies

1. Conditions for issuing the License for establishment and operation to a private investment company:

a) Clause 1 Article 87 of the Decree No. 58/2012/ND-CP shall apply to the private investment companies that delegate the capital management;

b) Clause 2 Article 87 of the Decree No. 58/2012/ND-CP shall apply to the private investment companies that manage their capital themselves.

2. If the charter of the investment company allows, shareholders may make contributions from listed and registered securities at the Stock Exchange. The contributions from securities must ensure that:

a) The contributors are not restricted from transferring the securities planned to be contributed to the investment company; the securities are not collateral being pledged, mortgaged, deposited, or blocked in other collateral transactions as prescribed by civil laws;

b) The securities contributed to the investment company are conformable with the charter of the investment company, congruent with the investment targets and investment policies of the investment company; are not suspended nor delisted, nor securities of issuers that are put into liquidation, dissolution, or bankruptcy;

c) The contributions make from securities must be approved by all shareholders of the investment company, and only consider complete after the lawful ownership of each contributed security is transferred to the investment company. The ownership transfer must comply with the guidance of the Vietnam Securities Depository;

d) The valuation of contributed securities must be conformable with the charter of the investment company, and Annex 07 enclosed with this Circular. The prices of securities being contributed to the private investment company shall be determined by the depository bank based on the closing prices on the date on which the procedure for transferring the ownership is completed

3. The documentation, order, and procedure for issuing the License for establishment and operation to a private investment company are specified in Article 88 of the Decree No. 58/2012/ND-CP. The application for the License for establishment and operation shall be made in accordance with the template in Annex 06 enclosed with this Circular; When making contributions from securities, the application for the License for establishment and operation must be enclosed with the following documents:

a) The certification made by the Vietnam Securities Depository about the list of shareholders that make contributions from securities, the depository account number of each shareholder, the detailed list of contributed securities of each shareholder, the kind (ticker symbol) of contributed securities, and the quantity;

b) The asset valuation record made by the depository bank.

Section 2.  ACTIVITIES OF INVESTMENT COMPANIES

Article 21. Activities of private investment companies

1. The activities of investment companies must comply with Clause 1 Article 89 of the Decree No. 58/2012/ND-CP.

2. When making investments in real estate, the investment company must appoint an independent valuation organization. The independent valuation organization must:

a) Be a valuation enterprise as prescribed by laws on valuation, or a real estate trader licensed to valuate real estate as prescribed by laws on real estate trading.

b) Not be a person related to the asset management company or supervisory bank; not be a person related to the partners in the transactions of the real estate being valuated;

c) Have at least 03 employees that have the valuer's certificate or real estate valuer's certificate.  These employees must have at least 05 years of experience of real estate valuation;

3. If the prospectus of the investment company allows, the investment company may take loans from the depository bank or supervisory bank in the following manners:

a) Taking loans to buy securities on margin up to the line of credit passed by the General meeting of shareholders;

b) Running up an overdraft loans up to the limit passed by the General meeting of shareholders;

c) Taking loans or giving loans of securities if permitted by law;

d) The sales that guarantee to repurchase securities.

4. The investment company must ensure that the total debts and amounts payable do not exceed 30% of the total asset value of the investment company at the time of taking loans.

Article 22. The net asset value and distribution of profit of private investment companies

1. The investment company or the asset management company (if any) must determine the net asset value of the investment company and the net asset value per share. The determination of net asset values shall be done by the securities company in accordance with Article 10 of this Circular.

3. The distribution of profit of private investment companies must comply with Article 11 of this Circular and relevant laws.

Section 3. ORGANIZATION OF PRIVATE INVESTMENT COMPANIES

Article 23. Rights and obligations of shareholders

Rights and obligations of shareholders must be conformable with the charter of the investment company, with relevant regulations in Article 12 of this Circular, and with the laws on enterprises.

Article 24. The General assembly of shareholders and the Board of Directors

1. The General meeting of shareholders and the Board of Directors of a private investment company must comply with the relevant regulations in Article 13, Article 14, and Article 15 of this Circular, and the laws on enterprises.

2. The General meeting of shareholders and the Board of Directors of a private investment company must comply with its charter and, the laws on enterprises and securities applicable to listed companies.

Article 25. Personnel of private investment companies that managed their own capital

1. The Director, Deputy Director, and operators of the investment company that manage its own capital must:

a) Have worked for totally 05 years at the positions related to securities trading in finance, banking, insurance organizations, or in finance, accounting, or investment department in other enterprises;

b) Have Licenses for asset management, or:

- Have obtained Licenses for security trading in member states of OECD; or have worked in asset management overseas; or

- Have obtained the Certificate of Chartered Financial Analyst level II (CFA), Certified International Investment Analyst – Final level (CIIA), Association of Chartered Certified Accountants (ACCA), Certified Public Accountants (CPA), Certificate in Quantitative Finance, or Quantitative Risk Management.

2. The individuals mentioned in Clause 1 of this Article may not simultaneously work for another organization, unless they are authorized representatives of the organizations that receive capital from the investment company.

3. An investment company that makes investments in real estate must have at least one employee that:

a) Has the License for real estate valuation as prescribed by laws on real estate trading, and has worked for at least 02 years in real estate valuation for real estate trading organizations, real estate service providers, valuation organizations; or

b) Has the valuer's license, or passed the tests on the following subjects in the examination in valuation: (i) pricing foundation; (ii) valuation method and principles; (iii) real estate valuation; and (iv) enterprise valuation.

Section 4. MANDATORY CHANGES AND RESTRUCTURING OF PRIVATE INVESTMENT COMPANIES

Article 26. Increase and decrease of charter capital of private investment companies

1. The offering of private shares to increase the capital of the investment company must:

a) Be passed by the General meeting of shareholders;

b) Have a plan for offering private shares which is passed in the latest General meeting of shareholders;

c) Comply with Point b Clause 1 Article 87 of the Decree No. 58/2012/ND-CP;

d) When increasing capital by issuing bonus shares or paying dividends by shares, the investment company must have adequate sources from capital surplus and post-tax profit in the latest audited financial statement.

2. The decrease of the capital of the investment company must:

a) Comply with Points a, b, and c Clause 1 of this Article;

b) The payment must ensure that the charter capital and net asset value of the investment company after the adjustment do not fall below 50 billion VND;

3. The order and procedure for making single and additional issues to existing shareholders must comply with the laws on securities and enterprises.

4. Within 10 days after the increase or decrease of the charter capital, the investment company must report the result to the State Securities Commission. The report includes:

a) The written request for adjusting the charter capital;

b) The meeting minutes and decision made by the General meeting of shareholders or the Board of Directors to approve the increase or decrease of the charter capital of the investment company;

c) The adjusted prospectus or charter of the investment company (if any);

d) The certification made by the depository bank or supervisory bank of the changed capital;

dd) The plan for increasing or decreasing the charter capital;

e) When making issues to new shareholders, the following documents must be added:

- For individuals: Personal profiles of shareholders, the valid copy of the Certificate of Trading code registration (applicable to foreign shareholders);

- For organizations: the valid copy of the License for establishment and operation, the Certificate of Business registration (if any) or the equivalent; the charter, the meeting minutes enclosed with the resolution of the General meeting of shareholders or the Board of Directors in accordance with regulations of the charter, the Member assembly, or the owner on the contributions to investment companies and the appointment of representatives of contributions, the power of attorney, and personal profiles of the representatives; the written approval of the competent State management agencies as prescribed by law; the valid copy of the Certificate of Trading code registration (applicable to foreign organizations);

5. The documents prescribed in Clause 4 this Article shall be made into 01 original dossier, and enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

6. Within 07 days from the date on which the complete and valid dossier is received, the State Securities Commission shall adjust the License for establishment and operation to the investment company. The adjusted license must specify the charter capitals before and after the adjustment of the contributions or payments.

Article 27. Changes subject to approval of a private investment company

1. The changes of the name, the asset management company, the depository bank, or the supervisory bank of the investment company must be approved by the State Securities Commission.

2. The application for the changes prescribed in Clause 1 of this Article includes:

a) The written application for the changes made in accordance with the template in Annex 08 enclosed with this Circular;

b) The meeting minutes and decision of the General meeting of shareholders on the approval for the changes prescribed in Clause 1 of this Article;

c) When replacing the asset management company, depository bank, or supervisory bank, the investment company must provide their commitments to handover the rights and obligations to the alternative asset management company, depository bank, or supervisory bank.

3. The documents prescribed in Clause 2 this Article shall be made into 01 original dossier, and 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, the State Securities Commission shall issue a written approval for the changes of the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

Article 28. The amalgamation and merger of private investment companies

1. An investment company shall be amalgamated or merged with other private investment companies when:

a) The amalgamation or merger has been approved by General meeting of shareholders;

b) The amalgamation or merger plan, and the amalgamation or merger contract have been approved by General meeting of shareholders. The amalgamation or merger plan, the amalgamation or merger contract must comply with the templates in Annex 09 and 10 enclosed with this Circular.

c) When swapping stocks together with pay cash, the shareholders of the transferor company shall receive an amount which does not exceed 10% of the net asset value per share on the amalgamation or merger day;

d) The shareholders that protest against the amalgamation or merger may request the transferor company to repurchase their shares at a price agreed by both parties based on the net asset value per share on the repurchase date. Creditors may request the debt repayment  before the amalgamation or merger. The order and procedure for requesting the share repurchase or debt repayment must comply with the laws on enterprises;

dd) The transferee company must satisfy the conditions in Clause 1 Article 20 of this Circular.

2. Within 60 days from the date on which the General assembly of shareholders of last the investment company approves the amalgamation or merger, the transferee company shall send the State Securities Commission an application for the issue or the adjustment of the License for establishment and operation.

3. The application in Clause 2 of this Article includes:

a) The written request for the issue/adjustment of the License for establishment and operation, made in accordance with the template in Annex 11 enclosed with this Circular, enclosed with the original Licenses for establishment and operation of the transferor companies;

b) The decision of the General meeting of shareholders on the amalgamation or merger, including the meeting minutes and resolution of General meeting of shareholders;

c) The list of creditors that request the repayment, and the amount payable to them; the list of shareholders that request the share repurchase, the amount of shares to be repurchased, and the payment;

d) In an amalgamation, the following documents must be included: the charter, the prospectus of the amalgamated company, the depository and supervision contracts passed by General meeting of shareholders;

dd) The list of shareholders, members of the Board of Directors, the Director of the transferee company, made in accordance with the templates in Annex 15 enclosed with this Circular, and other relevant documents as prescribed in Point e and Point g Clause 1 Article 88 of the Decree No. 58/2012/ND-CP.

4. The documents prescribed in Clause 3 of this Article shall be made into 01 original dossier, and enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

5. Within 15 days from the date on which the complete and valid dossier is received, the State Securities Commission shall issue or adjust the License for establishment and operation of the transferee company. The refusal must be notified and explained in writing by the State Securities Commission.

6. 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.

7. 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 of a share of the transferor companies on the amalgamation or merger date; the conversion rate, and the par value per share (if any).

8. Within 30 days from the amalgamation or merger date, the transferee company shall report the result of the amalgamation or merger to the State Securities Commission. The report includes:

a) The certification made by the depository bank or supervisory bank of the total asset value, total debt value, and net asset value on the amalgamation or merger date, the conversion rate, the par value per share (if any), 

b) The written certification of competent State management agencies that the relevant investment companies have returned the seals, the seal registration certificates, and tax code registration certificates.

Article 30. The dissolution of private investment companies

1. An investment company shall be dissolved under the decision of General meeting of shareholders in the following cases:

a) The investment management contract is terminated, or the asset management company is dissolved, bankrupted, or has its License revoked, and the Board of Directors of the investment company fails to appoint an alternative asset management company within 60 days from the occurrence of the event;

b) The depository or supervision contract is terminated, or the depository bank or supervisory bank is dissolved, bankrupted, or has its License revoked, and the Board of Directors of the investment company fails to appoint an alternative depository bank or supervisory bank within 60 days from the occurrence of the event;

c) The net asset value of the investment company falls below 10 billion VND in 06 consecutive months;

d) The operating period in the charter of the investment company is over;

dd) Other cases prescribed in the charter of the investment company.

2. The General meeting of shareholders may appoint an independent audit organization to inspect, assess, and supervise the liquidation, verify the validation and the distribution of assets of the investment company among its shareholders, ensuring that the investment company is liquidated and dissolved in a fair and open manner.

3. From the date on which the investment company decides or is compelled to dissolve, the investment company, the asset management company (if any), the depository bank, and the supervisory bank may not carry out the forbidden activities prescribed by the laws on enterprises.

4. Within 07 days from the dissolution date prescribed in Clause 1 of this Article, the asset management company shall send an application for initiating the dissolution procedure. The application for initiate the dissolution procedure includes:

a) The written request for the dissolution of the investment company made in accordance with the template in Annex 13 enclosed with this Circular.

b) The meeting minutes and resolution of the General meeting of shareholders on the dissolution of the investment company;

c) The plan for liquidating and dissolving the investment company passed by the General meeting of shareholders;

d) The written commitments  made by the asset management company (if any), the depository bank, and the supervisory bank to complete the procedure for liquidating and dissolving the investment company.

5. The documents prescribed in Clause 4 of this Article shall be made into 01 original dossier, and enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

6. Within 15 days from the date on which the complete and valid dossier is received, the State Securities Commission shall issue a written approval for initiating the procedure for liquidating and dissolving the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

7. The Boards of Directors of the investment company, asset management company (if any), depository bank, and supervisory bank are responsible for liquidating and distributing assets of the investment company among its shareholders according to the plan approved by General meeting of shareholders. 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 approval for the liquidation and dissolution is obtained. The liquidation result must be certified by the depository bank or supervisory bank, and verified by the Board of Directors of an audit organization appointed by the General meeting of shareholders as prescribed in Clause 2 of this Article.

8. The private investment company, the asset management company (if any), the depository bank and the supervisory bank must disclose information and notify the result of the dissolution of the private investment company as prescribed in Clause 7 and Clause 8 Article 18 of this Circular.

Article 31. Revoking the License for establishment and operation of a private investment company

1. The License for establishment and operation of a private investment company shall be revoked in the following cases:

a) The application for the License for establishment and operation of the investment company has incorrect or fabricated information about the conditions for the establishment;

b) The securities investments are not made within 12 months form the date of issue of the License for establishment and operation

c) It is dissolved, amalgamated, or merged.

2. The State Securities Commission shall announce the revocation of the Licenses for establishment and operation of investment companies on the website of the State Securities Commission

3. After the decision to revoke the License for establishment and operation is made by the State Securities Commission, the investment company, the asset management company (if any), the depository bank, and the supervisory bank shall initiate the procedure for liquidation and dissolution as prescribed by law.

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