Chương IV Thông tư 98/2020/TT-BTC : Công ty đầu tư chứng khoán

Chapter IV

SECURITIES INVESTMENT COMPANIES

Section 1. GENERAL PROVISIONS ON SECURITIES INVESTMENT COMPANIES

Article 57. General provisions on securities investment companies

1. Capital of a public securities investment company must be managed by a fund management company. A private securities investment company may itself manage or authorize a fund management company to manage its capital.

2. A securities investment company is not allowed to establish any branches or representative offices. The securities investment company whose capital is managed by a fund management company may use the headquarters of that fund management company as its headquarters.

3. General Director (Director), and Deputy General Director (Deputy Director) of the entrusting securities investment company are fund executives who are designated by the fund management company and must meet requirements for certified securities professionals and fund executives in law regulations on operations of fund management companies. These individuals are allowed to act on behalf of the fund management company to conclude and conduct securities transactions and economic contracts with the authorization of the securities investment company.

4. The securities investment company shall only issue a type of common shares and is not obliged to repurchase its issued shares, unless shares are repurchased for cancel.

5. When buying or selling assets for the securities investment company, the fund management company or private securities investment company that self-manages its capital shall comply with Article 21 hereof.

Article 58. Rights and obligations of shareholders

1. Shareholders of a securities investment company shall have rights and obligations as prescribed in the Law on enterprises and the Law on securities.

2. The shareholder or group of shareholders that holds at least 5% of the outstanding shares or a smaller ratio specified in the company's charter shall have the rights and obligations:

a) Access and extract minutes of meetings and resolutions of the Board of Directors, annual financial statements and reports on operations of the securities investment company provided by the supervisory bank;

b) Demand an extraordinary General Meeting of Shareholders be convened in the following cases;

- There are grounds that the Board of Directors of the securities investment company, the fund management company or supervisory bank infringes upon rights of shareholders of the securities investment company, obligations of executives, fund management company or supervisory bank, or makes decisions beyond their authority prescribed in the charter of the securities investment company or supervision contract or delegated by the General Meeting of Shareholders, and thus causes damage to the securities investment company;

- The term of office of the Board of Directors has expired for more than 06 months without holding a new election;

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

c) Request the fund management company and supervisory bank to provide explanations about issues concerning assets of the securities investment company and management and trading thereof. Within 15 days from the receipt of the request, the fund management company or supervisory bank must give a written response to the requesting shareholder;

d) Propose additional issues to the agenda of the General Meeting of Shareholders. The proposal shall be made in writing and sent to the fund management company at least 03 working days before the opening date, unless another period is specified in the charter of the securities investment company;

dd) Perform other rights and obligations as prescribed in the charter of the securities investment company.

3. The shareholder or group of shareholders that holds at least 10% of the outstanding shares or a smaller ratio specified in the company's charter is entitled to nominate candidates to the Board of Directors. Nomination procedures shall be carried out in accordance with relevant regulations applicable to public companies laid down in the Law on Enterprises and the Law on securities.

4. The request of the shareholder or group of shareholders mentioned in Clause 2 or 3 of this Article must be made in writing and include full name, contact address, number of ID card, citizen’s identity card, passport or another valid personal identification paper; name, headquarters address, nationality, number of establishment decision or enterprise registration certificate of the shareholder that is an organization; the number of shares held and time of ownership of each shareholder, total shares of the group of shareholders and their holdings in securities investment company; requests and recommendations; grounds and reasons thereof. If an extraordinary General Meeting of Shareholders is requested as prescribed in Point b Clause 2 of this Article, the request must be accompanied by documents stating the reasons for the extraordinary General Meeting of Shareholders; or documents and evidences about violations committed by the Board of Directors of the private securities investment company that self-manages its capital, the fund management company, supervisory bank, severity of the violation or about decisions issued beyond its authority specified in the charter of the securities investment company or supervision contract.

Article 59. General Meeting of Shareholders

1. The General Meeting of Shareholders of the securities investment company shall be convened by the Board of Directors of the private securities investment company that self-manages its capital or the fund management company and issue decisions on the following issues:

a) Revisions to the charter of the securities investment company;

b) Fundamental changes in investment policies and objectives; holdings by foreign investors in the securities investment company; increase in service fees paid to the fund management company or supervisory bank; replacement of the fund management company or supervisory bank;

c) Consolidation or merger; dissolution; change of the charter capital; change of operating period of the securities investment company;

d) Profit distribution plan;

dd) Approval for the contracts and transactions between the securities investment company and shareholders holding more than 10% of the company's outstanding shares, their authorized representatives, or members of the company’s Board of Directors. In this case, the shareholder that directly participates in the transaction shall not vote. The contract or transaction is approved when it is voted for by a number of shareholders representing at least 65% of total votes;

e) Election or dismissal the chairperson and members of the Board of Directors; remunerations and operating expenses of the Board of Directors; selection of accredited audit organization to audit annual financial statements, and independent valuation firm (if any); approval of financial statements, annual reports on assets and operations of the securities investment company;

g) Consideration and actions against violations committed by members of the Board of Directors of the private securities investment company that self-manages its capital, fund management company, supervisory bank and members of Board of Directors that cause damage to the securities investment company;

h) Request for transaction documents to be presented by the fund management company and supervisory bank at the General Meeting of Shareholders of the securities investment company;

i) Other issues within its authority as prescribed in the Law of enterprises, the Law on securities, and charter of the securities investment company.

2. The fund management company shall prepare the agenda and contents of the General Meeting of Shareholders of the securities investment company in accordance with the Law on enterprises. The annual General Meeting of Shareholders shall be convened within 04 months from the end of the fiscal year. At the request of the Board of Directors of the securities investment company, the time limit for convening the annual General Meeting of Shareholders may be extended by up to 06 months from the end of the fiscal year and such extension must be notified to SSC.

3. The Board of Directors of the private securities investment company that self-manages its capital or the fund management company shall convene extraordinary the General Meeting of Shareholders of the securities investment company in the following cases:

a) The fund management company or supervisory bank, or Board of Directors of the securities investment company deems it necessary for the company’s interests;

b) The meeting is requested by the shareholder or group of shareholders mentioned in Point b Clause 2 Article 58 hereof;

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

4. The extraordinary General Meeting of Shareholders shall be convened within 30 days from the day on which the Board of Directors of the private securities investment company that self-manages its capital or the fund management company receives the request for holding the meeting. At least 07 days before the General Meeting of Shareholders, the private securities investment company that self-manages its capital or the fund management company must provide the agenda and relevant documents for SSC, and disclose information about the General Meeting of Shareholders, including reasons and objectives of the meeting.

5. In case the Board of Directors of the private securities investment company that self-manages its capital or the fund management company fails to convene a the General Meeting of Shareholders as prescribed in Clause 3 and Clause 4 of this Article, it shall assume legal responsibility and pay compensation for any damage caused to the securities investment company. If the fund management company continues refusing to convene the General Meeting of Shareholders as prescribed in Clause 3 of this Article, within 30 following days, the Board of Directors or supervisory bank shall convene the General Meeting of Shareholders on behalf of the fund management company in accordance with regulations herein.

Article 60. Conditions and procedures for meeting and ratifying decisions of General Meeting of Shareholders

1. The General Meeting of Shareholders shall be convened conducted when it is participated by a number of shareholders representing more than 50% of total votes. Shareholders may cast their votes directly or through their authorized representatives or by means of remote communication (by mail, fax, email, online meeting, electronic voting or another electronic voting form) as prescribed in the charter of the securities investment company.

2. In case the conditions for conducting the first meeting specified in Clause 1 of this Article are not fulfilled, the second meeting will be convened within 30 days from the planned opening date of the first meeting. In this case, the General Meeting of Shareholders shall be conducted regardless of the number of participating investors.

3. The General Meeting of Shareholders shall ratify resolutions by voting or questionnaire survey.

4. Resolutions of the General Meeting of Shareholders on the issues in Points b, c Clause 1 Article 59 hereof shall be ratified by voting at the meeting. In this case, a resolution shall be ratified when it is voted for by a number of shareholders representing more than 65% of total votes of all participating shareholders or a higher ratio as prescribed in the fund’s charter.

5. A decision of the General Meeting of Shareholders shall be ratified when it is voted for by a number of investors representing more than 50% of total votes of all participating shareholders, except the case in Clause 4 of this Article.

6. Rules, contents and procedures for questionnaire survey must be specified in the charter of the securities investment company and comply with the rules laid down in the Law on Enterprises. In this case, the person that convenes the General Meeting of Shareholders shall send questionnaires and meeting documents to shareholders within the same time limit as that for sending invitations to the General Meeting of Shareholders.

7. In case of questionnaire survey, a decision of the General Meeting of Shareholders shall be ratified when it is voted for by a number of shareholders representing more than 50% of the votes of all voting shareholders.

8. The fund management company and the Board of Directors of the securities investment company shall consider and ensure that all resolutions of the General Meeting of Shareholders of the securities investment company are conformable with regulations of law and the charter of the securities investment company. If a decision of the General Meeting of Shareholders is contrary to regulations of law and the charter of the securities investment company, opinions of shareholders about this case must be obtained by convening the General Meeting of Shareholders or questionnaire survey.

Article 61. Board of Directors of a securities investment company

1. The Board of Directors shall have 03 - 11 members who are elected at the General Meeting of Shareholders or by shareholders by questionnaire survey.

2. If a securities investment company is managed by the fund management company, at least two thirds (2/3) of members of its Board of Directors must be independent members according to the following rules:

a) They are neither related persons nor authorized representatives of the fund management company or supervisory bank;

b) They meet all eligibility requirements for members of Board of Directors laid down in the Law on enterprises.

3. Rights, obligations and designation, dismissal and replacement of members of the Board of Directors shall comply with the company’s charter and regulations of the Law on enterprises and the Law on securities.

4. The Board of Directors of a public securities investment company shall have:

a) At least 01 independent member who has professional qualifications and experience in accounting and auditing;

b) At least 01 independent member who has professional qualifications and experience in securities investment analysis or asset management;

c) At least 01 member who has professional qualifications in law.

The Board of Directors of a real estate securities investment company is not required to comply with Point a of this Clause but shall have at least 01 independent member who has professional qualifications and experience in real estate business or real estate valuation.

5. The Board of Directors of a securities investment company shall have the following rights and obligations:

a) Represent rights and interests of shareholders; perform acts as prescribed by law to protect rights and interests of shareholders;

b) Approve the valuation manual, list of quotation service providers as prescribed in Clause 3 Article 20 hereof; list of credit institutions as prescribed in Clause 3 Article 5 hereof; transactions prescribed in Clauses 2, 3 Article 21 hereof; dossiers for offering of additional shares and relevant contents within its jurisdiction;

c) Decide the levels of dividends distributed according to the profit distribution plan specified in the charter of the securities investment company or approved by the General Meeting of Shareholders; profit distribution time and method;

d) Make decisions on issues which cannot be agreed upon between the fund management company and supervisory bank in accordance with regulations of law;

dd) Request the fund management company and supervisory bank to provide adequate documents and information about asset management and supervision operations; and perform other rights and obligations according to regulations on administration of public companies in the Law on securities and the charter of the securities investment company;

e) Decide other issues within its authority prescribed in the Law of enterprises, the Law on securities, and charter of the securities investment company.

6. The meeting of the Board of Directors shall be conducted when it is participated by at least two thirds (2/3) of its members of which more than 50% are independent members. Members who do not directly participate in the meeting may vote by questionnaire survey or in other form as prescribed in the charter of the securities investment company. A decision of the Board of Directors shall be ratified when it is voted for by the majority of its members and independent members.

Article 62. Payment of dividends of securities investment companies

1. The securities investment company shall pay dividends to shareholders according to the profit distribution policy specified in its charter and the profit distribution plan approved by its General Meeting of Shareholders. The profits earned in the period or accumulated profits shall be used to pay dividends to shareholders after the company has fully made contributions to its funds as prescribed in its charter and has fulfilled its tax liabilities and other financial liabilities as prescribed by law.

2. Dividends can be paid in cash or additionally issued shares. At least 15 days before the payment of dividends, the fund management company must send notifications to investors according to their registered addresses or email addresses. A notification of dividend payment shall be made according to the form in Appendix VII enclosed herewith.

3. The payment of dividends by the securities investment company must comply with the following rules:

a) It must be conformable with the profit distribution policy specified in the charter of the securities investment company and the prospectus or summary prospectus;

b) It is made after the securities investment company has fulfilled its tax liabilities and other financial liabilities as prescribed by law and has fully made contributions to its funds as prescribed in its charter;

c) After payment of dividends, the securities investment company is still able to fully pay its debts and other liabilities when they are due, and its NAV shall not be lower than VND 50 billion;

d) The rate of dividends shall be decided by the General Meeting of Shareholders or Board of Directors of the securities investment company in conformity with its investment objectives and the profit distribution policy specified in its charter.

Article 63. Expenses of securities investment companies

Expenses of a securities investment company include:

1. Fund management fees paid to the fund management company;

2. Depository fees and supervision fees paid to the supervisory bank;

3. Audit fees paid to audit organizations;

4. Valuation fees paid to valuation firms; costs of legal counseling service, quotation service, and other services, remunerations paid to its Board of Directors;

5. Costs of drafting, printing and sending the prospectus, summary prospectus, financial statements, and other documents to shareholders; costs of information disclosure by the securities investment company; costs of holding General Meeting of Shareholders, and meetings of the Board of Directors;

6. Real estate maintenance and operation fees paid to real estate management units (if any), personnel and premises expenses (of private securities investment company);

7. Costs incurred from asset transactions of the securities investment company and other expenses as prescribed by law.

8. Costs arising from replacement of custodian bank, supervisory bank or other service providers.

Article 64. Consolidation and merger of securities investment companies

1. Consolidation or merger of securities investment companies shall be the same as that of private funds as prescribed in Article 11 hereof.

2. Shareholders objecting to the consolidation or merger may request the securities investment company to repurchase their shares. The repurchase price shall be agreed upon between two parties according to the NAV per share at the repurchase date. Creditors are entitled to request the securities investment company to repay debts before carry out the consolidation or merger.

3. Within 15 days from the effective date of the certificate of establishment and operation of the securities investment company established after the consolidation or merger, the consolidated or acquiring securities investment company shall directly, or through the fund management company, submit reports to SSC on competent authorities' certification of return of seal, seal registration certificate or TIN registration certificate by relevant securities investment companies.

Article 65. Dissolution of securities investment companies

Dissolution of private securities investment companies and public securities investment companies shall be the same as that of private funds and closed-end funds in Article 12 and Article 28 hereof.

Section 2. PUBLIC SECURITIES INVESTMENT COMPANIES

Article 66. Offering, additional issuance, distribution and certification of ownership of shares of public securities investment companies

1. Offering, additional issuance, distribution and certification of ownership of shares of public securities investment companies shall be carried out in the same manner as fund certificates of securities investment funds prescribed in Articles 13, 14 and 15 hereof.

2. A public securities investment company shall only carry out the public offering of securities when it is an initial public offering of shares to establish the company or the company issues shares to its existing shareholders to raise its charter capital or issues shares for conversion in case of consolidation or merger.

3. Distribution agents of public securities investment companies shall comply with regulations on distribution agents in Articles 76, 77 and 78 hereof.

Article 67. Investment portfolios, investments and asset transactions of public securities investment companies

1. Public securities investment companies are not allowed to perform business and production operations, and provide services.

2. The investment portfolios and investments of public securities investment companies shall comply with Article 24 and Article 25 hereof.

Article 68. NAVs of public securities investment companies

Fund management companies shall calculate NAVs, NAV per share of pubic securities investment companies at least every week as prescribed in Article 20 hereof.

Section 3. PRIVATE SECURITIES INVESTMENT COMPANIES

Article 69. Operations of private securities investment companies

1. Operations of a private securities investment company shall ensure the following provisions:

a) Its operations must comply with Article 50, Clause 1 Article 67 hereof;

b) It shall not carry out public offering of securities;

c) It is allowed to invest, without investment limits, in securities, real estate and other assets as prescribed by relevant laws, except the case in Point d of this Clause.

d) It shall only invest in public fund certificates and shares of public securities investment companies as prescribed in Point c Clause 5 Article 5 hereof;

dd) It may make indirect outward investments according to Clause 9 Article 24 hereof.

2. In case of investment in real estate, the securities investment company must select independent valuation firms. The selected independent valuation firm must meet the requirements laid down in Clause 2 Article 54 hereof. Management, trading and valuation of real estate shall comply with Articles 52, 53 and 54 hereof.

3. If permitted in its charter, the securities investment company may get mortgage loans, overdraft facility or loans in other form from the custodian bank, borrow money to purchase securities (margin trading), borrow or lend securities, or enter into repurchase agreements according to the following principles:

- Borrowing of assets or lending of securities must comply with regulations of law;

- Borrowing limit shall be decided by the General Meeting of Shareholders, provided that total debts and amounts payable of the securities investment company shall not exceed 30% of total value of its assets at any time;

- Organizational structure and operations of the credit department of the custodian bank must be separated from the depository department of the securities investment company; credit activities are independent from depository activities and fall beyond the scope of the depository contract;

- The fund management company shall provide information about rights and interests of the custodian bank and potential conflict of interest for the General Meeting of Shareholders of the securities investment company for consideration.

4. The securities investment company or fund management company (if any) shall monthly calculate or authorize the custodian bank that provides fund management service to calculate the NAV of the securities investment company and NAV per share. Calculation of NAV of the securities investment company shall comply with Clauses 1, 2, 3 and 8 Article 20 hereof.

5. The securities investment company shall:

a) Prepare and retain shareholder register and any information concerning the transfer of stakes between shareholders;

b) Submit reports to SSC on transfer of stakes between its shareholders within 15 days from the completion of the transfer. Such report must include the list of shareholders (before and after the transfer); number of shares (before and after the transfer); their holdings (before and after the transfer); changes thereof; transfer methods.

Article 70. Personnel of private securities investment companies that self-manage their capital and invest in real estate

A private securities investment company that intends to invest in real estate must employ at least an employee who possesses a valid valuer certificate or has passed the following exam subjects in the valuation examination, including: Principles of market prices; fundamentals of valuation; real estate valuation and business valuation.

Section 4. REAL ESTATE SECURITIES INVESTMENT COMPANIES

Article 71. General provisions on real estate securities investment companies

1. Real estate securities investment companies are real estate investment funds that are organized and operate as public securities investment companies.

2. Real estate securities investment companies are not real estate trading organizations as prescribed in the Law on real estate business. Real estate securities investment companies shall not do business and production operations, and provide services, but may authorize fund management companies to use their capital to make investments. This capital management shall be supervised by supervisory banks.

Article 72. Investment portfolios and investments of real estate securities investment companies

The investment portfolios and investments of real estate securities investment companies shall comply with Articles 51, 52, 53, 54, 55 and Article 68 hereof.