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THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No: 14/2007/ND-CP
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Hanoi,
January 19, 2007
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DECREE
DETAILING THE IMPLEMENTATION OF A
NUMBER OF ARTICLES OF THE LAW ON SECURITIES
THE GOVERNMENT
Pursuant to the
December 25, 2001 Law on Organization of the Government;
Pursuant to the June 29, 2006 Law on Securities;
At the proposal of the Finance Minister,
DECREES:
Chapter
I
GENERAL
PROVISIONS
Article
1.- Governing scope
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Article
2.- Interpretation of terms
1. Bond owner's
representative means a member of the securities depositary center authorized to
hold bonds and represent benefits of a bond owner.
2. Country of origin
means a country or a territory where a foreign legal entity is established.
3. Value of a fund's
net asset means the total value of a fund's assets minus the total value of its
payable debts.
4. Investment
management contract means a contract concluded between a securities investment
company or an organization or individual at home or abroad and a fund management
company, entrusting the latter to manage the investment of his/her/its assets.
Chapter
II
PUBLIC
OFFERING OF SECURITIES
Article
3.- Forms of public offering of securities
1. Initial public
offering of stocks or fund certificates covers:
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b/ Initial public
offering of stocks by an issuing organization to become a public company
through changes in its ownership structure without increasing the charter
capital of such issuing organization.
2. Additional public
offering of stocks or fund certificates covers:
a/ Additional public
offering of stocks or offering of rights to purchase shares by a public company
to its present shareholders in order to increase its charter capital;
b/ Subsequent public
offering of stocks by a public company to change its ownership structure
without increasing its charter capital;
c/ Additional public offering
of fund certificates by a fund management company; additional public offering
of stocks by a securities investment company.
3. Public offering of
bonds.
Article
4.- Conditions for initial public offering
of stocks by some types of enterprise
1. For enterprises
with 100% state capital, which are transformed into joint-stock companies in
combination with public offering of stocks, the provisions of law on
transformation of state companies into joint-stock companies shall be complied
with.
2. For foreign-invested
enterprises transformed into joint-stock companies in combination with public
offering of stocks:
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b/ Having an issuance
plan and a plan on the use of capital mobilized from the offering, approved by
the owner of the enterprise with 100% foreign capital or the board of directors
of the joint-venture enterprise;
c/ Being advised by a securities
company on the compilation of stock offering dossier.
3. For
foreign-invested enterprises already transformed into joint-stock companies,
the following conditions must be satisfied:
a/ Satisfying the
conditions specified in Clause 1, Article 12 of the Law on Securities;
b/ Satisfying the
conditions specified at Point c, Clause 2 of this Article.
4. For enterprises
newly established in the domain of infrastructure:
a/ Being investors in
the construction of infrastructure facilities under socio-economic development
schemes of ministries, branches, provinces or centrally run cities;
b/ Having investment
projects approved by competent authorities;
c/ Having commitments
made by their boards of directors or founding shareholders to bear joint
responsibility for their issuance plans and plans on the use of capital
mobilized from the offering;
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e/ Having banks to
supervise the use of capital mobilized from the offering.
5. For enterprises
newly established in the hi-tech domain:
a/ Operating in the
hi-tech domain eligible for investment promotion according to the provisions of
law;
b/ Satisfying the
conditions specified at Points b, c, d and e, Clause 4 of this Article.
6. Securities
investment companies that offer securities to the public shall comply with the
provisions of Chapter V of this Decree.
Article
5.- Conditions for offering of other types
of securities
1. A joint-stock
company that offers convertible bonds, bonds with warrants or warrant with
preferred stocks to the public shall satisfy the following conditions:
a/ The conditions
specified at Points a, b and d, Clause 2, Article 12 of the Law on Securities;
b/ Having an issuance
plan, a plan on the use of capital mobilized from the offering, or a plan on
the issuance of stocks in a quantity necessary for its transformation approved
by the shareholders' general meeting. The transformation plan specifies the
transformation conditions and duration, transformation percentage, calculation
method and other conditions determined in the issuance plan.
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a/ The conditions specified
in Clause 2, Article 12 of the Law on Securities;
b/ Having a commitment
on payment guarantee enclosed with documents evidencing the financial
capability of the guaranteeing organization in case of security with payment
guarantee, or having assets valued enough to pay for bonds in case of security
with assets. The value of assets used as security must be at least equal to the
total value of bonds registered for offering. The valuation of assets used as
security must be conducted by a competent valuation agency or organization and
shall be valid for no more than 12 months after the date of valuation. Assets
used as security must be registered with the competent agency according to the
provisions of law on security transactions.
This regulation does
not apply to cases where the payment-guaranteeing organization is the
Government or where the payment guarantee is provided by the Finance Ministry
on the Government's behalf.
c/ Designating a bond
owner's representative to supervise the realization of its commitment. The
following entities are not allowed to act as the bond owner representative:
- An organization
guaranteeing the debt payment by the issuing organization;
- A major shareholder
of the issuing organization;
- An organization
whose major shareholder is the issuing organization;
- An organization
sharing the same major shareholder with the issuing organization;
- An organization
sharing the same executive officer with the issuing organization, or an
organization that is, together with the issuing organization, controlled by the
same organization.
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a/ The conditions specified
in Clause 1 or 2, Article 12 of the Law on Securities;
b/ Wishing to mobilize
capital through various offerings suitable to its investment projects or
production or business plans approved by the competent authority;
c/ Having the offering
plan clearly stating target subjects, planned quantity and duration of each
offering.
4. Credit institutions
that satisfy the conditions specified at Points a and c, Clause 3 of this
Article may make the common registration of public offering of bonds for many offerings
in 12 months.
5. The Finance
Ministry sets the conditions for public offering for other specific cases based
on the development of the market.
Article
6.- Overseas offering of securities
1. An issuing
organization that conducts overseas offering of securities shall satisfy the
following conditions:
a/ Being not on the
list of business lines in which the participation of foreign parties is banned,
and ensuring participation ratios of foreign parties as specified by law;
b/ Having the overseas
offering of securities and the plan on the use of mobilized capital approved
under a decision of its board of directors or shareholders' general meeting
(for joint-stock companies), its members' council (for limited liability
companies with two or more members), or its owner (for one-member limited
liability companies) or the representative of the capital owner (for state
companies);
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2. At least 10 days
before sending its dossier for registration of overseas offering of securities,
the issuing organization shall send to the State Securities Commission the
following documents:
a/ A copy of the
dossier for offering registration with the competent authority of the country
where the issuing organization registers the offering;
b/ Documents
evidencing the satisfaction of the conditions specified in Clause 1 of this
Article.
3. Within 10 days
after its dossier for registration of overseas offering of securities takes
effect, the issuing organization shall send to the State Securities Commission
a copy of that dossier which has been approved overseas and disclose
information on the offering to the public.
4. An issuing
organization that conducts overseas offering of securities has the following
obligations:
a/ To disclose
information according to the provisions of foreign and Vietnamese laws;
b/ If it offers
securities both at home and overseas simultaneously, its periodical financial
statement must be made according to the international accounting standards or
according to international and Vietnamese accounting standards, enclosed with a
written explanation of differences between those accounting standards.
5. Within 15 days
after the end of the offering, the issuing organization shall send to the State
Securities Commission a report on the offering results.
6. Procedures for
transferring money amounts related to overseas offerings of securities shall
comply with the provisions of law on foreign exchange management.
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1. Conditions for
offering of bonds in Vietnam dong by an international financial institution:
a/ Being an
international financial institution to which Vietnam is a member;
b/ Having an issuance
plan and a plan on the use of proceeds from the public offering of bonds for
its investment projects in Vietnam, approved by the Finance Ministry;
c/ Committing to
fulfill its obligations toward investors concerning issuance conditions,
payment, assurance of legitimate rights and benefits of investors and other
conditions;
d/ Committing to
disclose information according to the provisions of Vietnamese law.
2. A dossier for
registration of public offering of bonds in Vietnam dong of an international
financial institution comprises:
a/ A written
registration of bond offering;
b/ An investment
project, including an issuance plan and a plan on the use of proceeds from the
offering;
c/ Commitment to
fulfill the obligations of the issuing organization;
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Chapter
III
LISTING OF
SECURITIES
Section
1. LISTING OF SECURITIES AT STOCK EXCHANGES OR SECURITIES TRADING CENTERS
Article
8.- Conditions for listing securities at
stock exchanges
1. Conditions for a
company to list its stocks:
a/ Being a joint-stock
company with a booked paid-up charter capital of VND 80 billion or more at the
time of listing registration. Depending on the market development, that capital
level may be increased or reduced by 30% at most by the Finance Ministry after
obtaining the consent of the Prime Minister;
b/ Having conducted
profitable business operation for two consecutive years preceding the year of
listing registration and suffering no accumulative loss by the year of listing
registration;
c/ Having no overdue
debt not yet backed by a provision according to the provisions of law; making
public all debts owed to the company by members of the board of directors, the
control board, the director or the general director, the deputy directors or
the deputy general directors, the chief accountant, the major shareholders and
affiliated persons;
d/ Having at least 20%
of its voting stocks held by at least 100 shareholders;
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f/ Having a valid
dossier for stock listing registration according to the provisions of Clause 2,
Article 10 of this Decree.
2. Conditions for a
company to list its bonds:
a/ Being a joint-stock
company, a limited liability company or a state enterprise with a booked
paid-up charter capital of VND 80 billion or more at the time of listing
registration;
b/ Having conducted
profitable business operation for two consecutive years preceding the year of
listing registration, having no debt overdue for more than one year and
fulfilling its financial obligations toward the State;
c/ Having its bonds of
the same issue owned by at least 100 people;
d/ Having a valid
dossier for bond listing registration according to the provisions of Clause 3,
Article 10 of this Decree.
3. Conditions for
listing certificates of a public fund or stocks of public securities investment
company:
a/ Being a closed-end
fund that has a total value of its issued fund certificates (by their par
value) of VND 50 billion or more or a securities investment company that has a
booked paid-up charter capital of VND 50 billion or more at the time of listing
registration;
b/ Its founding
members and members of the representative committee of the securities
investment fund or members of the board of directors, the control board, the
director or the general director, the deputy directors or the deputy general
directors and the chief accountant of the securities investment company commit
to hold 100% of fund certificates or stocks they own for 6 months after the
listing date and 50% of those fund certificates or stocks for 6 subsequent
months;
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d/ Having a valid
dossier for listing registration of certificates of the public fund or stocks
of the public securities investment company according to the provisions of
Clause 4, Article 10 of this Decree.
4. During the
transformation of a securities trading center into a stock exchange according
to the provisions of Clause 5, Article 134 of the Law on Securities, organizations
that have recently registered for listing of securities at Ho Chi Minh City
Securities Trading Center must satisfy the conditions specified in Clauses 1, 2
and 3 of this Article.
Article
9.- Conditions for listing securities at
securities trading centers
1. Conditions for a
company to list its stocks:
a/ Being a joint-stock
company with a booked paid-up charter capital of VND 10 billion or more at the
time of listing registration;
b/ Having conducted
profitable business operation for one year preceding the year of listing
registration, having no payable debt overdue for more than one year and
fulfilling its financial obligations toward the State;
c/ Having at least 20%
of its voting stocks held by at least 100 shareholders;
d/ Its shareholders
being members of the board of directors, the control board, the director or the
general director, the deputy directors or the deputy general directors and the chief
accountant commit to hold 100% of stocks they own for 6 months after the
listing date and 50% of those stocks for 6 subsequent months, excluding
state-owned stocks held by these individuals as representatives;
e/ Having a valid
dossier for stock listing registration according to the provisions of Clause 2,
Article 10 of this Decree;
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2. Conditions for a
company to list corporate bonds:
a/ Being a joint-stock
company, a limited liability company or a state enterprise with a booked paid-up
charter capital of VND 10 billion or more at the time of listing registration;
b/ Bonds of the same
issue have the same maturity date;
c/ Having a valid
dossier for bond listing registration according to the provisions of Clause 3,
Article 10 of this Article.
3. Government bonds,
government-guaranteed bonds and local administration bonds may be listed at
securities trading centers at the request of bond-issuing organizations.
4. Securities
qualified for listing but not yet listed at securities trading centers may be
traded at securities companies and the trading results must be transferred
through securities trading centers for payment through the securities
depositary center.
5. The segmentation of
areas for listing and trading at securities trading centers shall comply with
the listing regulations of securities trading centers approved by the State
Securities Commission.
6. The Finance
Ministry specifies conditions for listing other types of securities at
securities trading centers.
Article
10.- Dossier for registration of
securities listing at stock exchanges or securities trading centers
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2. A dossier for
registration of stock listing comprises:
a/ A written
registration of stock listing;
b/ A decision of the
shareholders' general meeting approving the stock listing;
c/ A register of the
listing-registering organization's shareholders made within one month before
the time of submission of the listing registration dossier;
d/ A prospectus as
specified in Article 15 of the Law on Securities;
e/ Commitments of
shareholders being members of the board of directors, the control board, the
director or the general director, the deputy directors or the deputy general
directors and the chief accountant to hold 100% of stock they own for 6 months
after the listing date and 50% of those stocks for 6 subsequent months;
f/ A listing
consultancy contract (if any);
g/ The securities
depositary center's written certification that the stocks of that organization
have been registered for concentrated depository.
3. A dossier for
registration of bond listing comprises:
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b/ A decision of the
board of directors approving the bond listing or of the shareholders' general
meeting approving the convertible stock listing (for joint-stock companies) or
of the members' council approving the bond listing (for limited liability
companies with two or more members) or of the company owner (for one-member
limited liability companies) or of the competent authority (for state
enterprises);
c/ A register of the
listing-registering organization's bond owners;
d/ A prospectus as
specified in Article 15 of the Law on Securities;
e/ The
listing-registering organization's commitment to fulfill its obligations toward
investors, including payment terms, debit ratio on the own capital, conditions
for conversion (in case of listing of convertible bonds) and other conditions;
f/ A commitment to
guarantee payment or a written record of valuation of security assets, enclosed
with valid documents evidencing the lawful ownership and the insurance policy
(if any) for those assets in case of listing of secured bonds. Assets used as
security must be registered with a competent agency;
g/ A contract between
the issuing organization and the representative of bond owners;
h/ The securities
depositary center's written certification that the bonds of that organization have
been registered for concentrated depository.
4. A dossier for
registration of listing of a public fund's certificates or a public securities
investment company's stocks comprises:
a/ A written
registration of listing of public fund certificates or stocks of the public
securities investment company;
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c/ A register of
investors holding public fund certificates or a register of shareholders of the
public securities investment company;
d/ The charter of the
public fund or the public securities investment company, made according to the
form set by the Finance Ministry, and a supervision contract approved by the
investors' congress or the shareholders' general meeting;
e/ A prospectus as
specified in Article 15 of the Law on Securities;
f/ A list and resumes
of members of the fund's board of representatives; written commitments of
independent members in the fund's board of representatives on their
independence from the fund management company and the supervisory bank;
g/ Commitments of
founding members and members of the securities investment fund's board of representatives
or shareholders being members of the board of directors, the control board, the
director or the general director, the deputy directors or the deputy general
directors and the chief accountant of the securities investment company to hold
100% of fund certificates or stocks they own for 6 months after the listing
date and 50% of those fund certificates or stocks for subsequent 6 months;
h/ A report on
investment results of the fund or the securities investment company, accounted
up to the time of listing registration, with the supervisory bank's
certification;
i/ The securities
depositary center's written certification that the fund certificates of the
public fund or the stocks of the public securities investment company have been
registered for concentrated depository.
5. After obtaining the
listing approval of the stock exchange or the securities trading center, the
listing-registering organization shall submit to the State Securities
Commission a copy of the listing registration dossier.
6. The Finance
Ministry specifies the listing registration dossiers for other types of
securities.
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1. A listing-registering
organization shall bear legal liability for the accuracy, truthfulness and
completeness of its listing registration dossier. The listing consultancy
organization, the accredited audit organization and the persons signing the
audit report and the financial statement of the listing-registering
organization and any organization or individual certifying the listing dossier
shall bear responsibility within a scope related to the listing registration
dossier.
2. In the course of
examining the dossier, the stock exchange or the securities trading center may
request the listing-registering organization to amend or supplement the listing
registration dossier in order to ensure that information is disclosed in an
accurate, truthful and complete manner, thus protecting the legitimate rights
and benefits of investors.
3. In the course of
examining the listing registration dossier by the stock exchange or the
securities trading center, members of the board of directors, the control
board, the director or the general director, the deputy directors or the deputy
general directors, the chief accountant and major shareholders of the
listing-registering organization may not transfer stocks they hold.
4. If the dossier
submitted to the stock exchange or the securities trading center is detected to
be incomplete or contain untruthful information or upon the occurrence of new
events affecting the content of the submitted dossier, the listing-registering
organization shall report such to the stock exchange or the securities trading
center for timely amendment or supplementation of the listing registration
dossier.
Article
12.- Procedures for listing registration
1. Within 30 days
after receiving the complete and valid dossier, the stock exchange or the
securities trading center shall approve or reject the listing registration. In
case of rejection of listing registration, the stock exchange or the securities
trading center shall notify in writing, clearly stating the reason(s) therefor.
2. The stock exchange
or the securities trading center guides in detail the procedures for
registration of securities listing in its regulation on securities listing.
Article
13.- Change of listing registration
1. A listing
organization shall carry out procedures for changing its listing registration
in the following cases:
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b/ It is divided or
merged;
c/ Other cases of
change in the volume of securities listed at the stock exchange or the
securities trading center.
2. A dossier for
change of listing registration to be submitted to the stock exchange or the
securities trading center comprises:
a/ A written request
for change of listing registration, clearly stating the reason(s) for the
listing change, and relevant documents.
b/ A decision of the
shareholders' general meeting approving the change of stock listing, of the
board of directors approving the change of bond listing, or of the
shareholders' general meeting approving the change of convertible bond listing
(for joint-stock companies); of the members' council approving the change of
bond listing (for limited liability companies with two or more members) or the
company's owner (for one-member limited liability companies) or the
representative of the capital owner (for state enterprises); of the investors'
congress approving the change of securities investment fund certificate listing
or of the shareholders' general meeting of the securities investment company
approving the change of its stock listing.
3. Procedures for
effecting the change of listing registration shall comply with the provisions of
the listing regulation of the stock exchange or the securities trading center.
Article
14.- Delisting
1. Securities are
delisted upon the occurrence of one of the following circumstances:
a/ The organization
listing securities at the stock exchange or the securities trading center no
longer satisfies the listing conditions specified at Points a and d, Clause 1,
Points a and c, Clause 2, Points a and c, Clause 3, Article 8; Points a and c,
Clause 1; Point a, Clause 2, Article 9, of this Decree for one year;
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c/ The listing
organization has its business registration certificate or license for operation
in a specialized domain withdrawn;
d/ Its stocks have
been left untraded at the stock exchange or the securities trading center for
12 months;
e/ It has suffered
production or business losses for three consecutive years and the total of its
accumulative losses exceeds its own capital stated in the latest financial
statement;
f/ The listing
organization ceases to exist due to a merger, consolidation, division,
dissolution or bankruptcy, or the securities investment fund terminates its
operation;
g/ Bonds come mature
or listed bonds are wholly redeemed by the issuing organization before their
mature;
h/ The audit
organization disapproves or refuses to give its opinions on the listing
organization's latest annual financial statement;
i/ The organization of
which the listing is approved fails to carry out the procedures for listing at
the stock exchange or the securities trading center within three months after
the date of listing approval;
j/ The listing
organization requests the delisting.
2. If the listing
organization requests the delisting, the delisting dossier comprises:
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b/ A decision of the
shareholders' general meeting approving the stock delisting, of the board of
directors approving the bond delisting, or of the shareholders' general meeting
approving the convertible bond delisting (for joint-stock companies); of the
members' council approving the bond delisting (for limited liability companies
with two or more members) or the company's owner (for one-member limited
liability companies) or the representative of the capital owner (for state
enterprises); of the investors' congress approving the securities investment
fund certificate delisting or of the shareholders' general meeting of the
securities investment company approving the stock delisting.
3. Organizations whose
securities are delisted may register for relisting at least 12 months after the
delisting only if they satisfy the conditions specified in Article 8 and Clause
1, Article 9 of this Decree. Dossiers and procedures for relisting shall comply
with the provisions of Article 10 of this Decree.
4. Delisting
procedures shall comply with the provisions of the listing regulation of the
stock exchange or the securities trading center.
Section
2. LISTING OF SECURITIES AT FOREIGN STOCK EXCHANGES
Article
15.- Conditions for securities to be
listed at a foreign stock exchange
1. Satisfying the
conditions specified at Point a, Clause 1, Article 6 of this Decree.
2. Having a decision
approving the listing at the foreign stock exchange of the board of directors
or the shareholders' general meeting (for joint-stock companies), of the
members' council (for limited liability companies with two or more members), of
the company's owner (for one-member limited liability companies), or of the
representative of the capital owner (for state enterprises).
3. Satisfying the
conditions for listing at the stock exchange of a country of which the
securities market management authority or the stock exchange has reached a
cooperation agreement with the State Securities Commission of Vietnam.
Article
16.- Report on listing of securities at a
foreign stock exchange
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2. Within 15 days
after its listing or delisting at a foreign stock exchange is approved, the
enterprise shall send to the State Securities Commission a copy of the listing
approval or the delisting decision and disclose information on listing or
delisting of securities at the foreign stock exchange in the State Securities
Commission's publications and website.
Article
17.- Obligations of enterprises whose
securities are listed at foreign stock exchanges
1. To disclose information
according to the provisions of foreign and Vietnamese laws.
2. To ensure the
participation ratio of foreign investors according to the provisions of law.
3. To make periodical financial
statements according to the international accounting standards or both
international and Vietnamese accounting standards, enclosed with a written
explanation of differences between those accounting standards, if they list at
both domestic and foreign stock markets.
4. To comply with
Vietnam's regulations on foreign exchange management applicable to
foreign-currency transactions related to the listing of securities at foreign
stock exchanges.
Chapter
IV
SECURITIES
COMPANIES, FUND MANAGEMENT COMPANIES
Article
18.- Regulations on capital of securities
companies and fund management companies
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a/ Securities
brokerage: VND 25 billion;
b/ Securities dealing:
VND 100 billion;
c/ Securities issuance
underwriting: VND 165 billion;
d/ Securities
investment consultancy: VND 10 billion.
2. When an
organization applies for license for many business operations, its legal
capital shall be the total of the legal capital amounts required for the to
be-licensed operations.
3. The legal capital
of a fund management company, a foreign-invested fund management company or a
Vietnam-based branch of a foreign fund management company must be at least VND
25 billion. The Finance Ministry shall specify the legal capital of a fund
management company on the basis of the capital amount entrusted to it for
management.
4. Capital
contributions for establishment of a securities company, a fund management
company, a Vietnam-based branch of a foreign securities company or a foreign
fund management company must be in Vietnam dong or a freely convertible foreign
currency.
Organizations and
individuals that make capital contributions shall prove that their capital
sources are lawful and have them certified by independent audit organizations.
5. Ownership
percentage of foreign parties in securities companies or foreign-invested fund
management companies in Vietnam shall comply with the provisions of law.
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7. An organization or
individual that owns 10% or more of the equity capital or voting contributed
capital of a fund management company and its/his/her affiliated persons may not
own more than 5% of stocks or voting contributed capital of another fund
management company.
Article
19.- Dossiers and procedures for granting
establishment and operation licenses to foreign-invested securities companies
or fund management companies in Vietnam
1. A dossier comprises:
a/ Documents specified
in Article 63 of the Law on Securities;
b/ The joint-venture
contract, for case of establishment of a joint-venture securities company or a
joint-venture fund management company, or the capital contribution commitment,
for case of establishment of a securities company or a fund management company
to which a foreign party contributes capital;
c/ If the foreign
party is a legal entity, the dossier also contains the following documents:
valid copies of the charter, the establishment and operation license or the
business registration certificate or a document of equivalent legal validity of
that legal entity granted by the country of origin; the decision on
establishment or capital contribution for establishment of the securities
company or the securities investment fund management company in Vietnam issued
by foreign competent authority.
2. The dossiers
specified in Clauses 4, 5, 6 and 7, Article 63 of the Law on Securities in case
the director or the general director, the founding shareholders or founding
members are foreign organizations or individuals and specified at Point b or c,
Clause 1 of this Article must be made in two copies, one in English and another
in Vietnamese. The dossier set in English must be consularly legalized. Copies
in Vietnamese and translations from English into Vietnamese must be certified
by a Vietnamese notary public or a law firm having the translation function and
lawfully operating in Vietnam.
3. The time limit for
granting the establishment and operation license is specified in Article 65 of
the Law on Securities.
Article
20.- Dossiers and procedures for grant of
establishment and operation licenses for Vietnam-based branches of foreign
securities companies or fund management companies
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a/ Documents specified
in Article 63 of the Law on Securities;
b/ Copies of the
charter, the establishment and operation license or the business registration
certificate of the foreign securities business organization granted by the
country of origin; the decision on setting up of Vietnam-based branch and the
capital allocation decision of the competent authority of the foreign
securities trading organization.
2. A dossier specified
in Clause 1 of this Article must be made in two copies, one in English and another
in Vietnamese. The dossier set in English must be consularly legalized. Copies
in Vietnamese and translations from English into Vietnamese must be certified
by a Vietnamese notary public or a law firm having the translation function and
lawfully operating in Vietnam.
3. The time limit for
granting the establishment and operation license is specified in Article 65 of
the Law on Securities.
Chapter
V
SECURITIES
INVESTMENT COMPANIES
Article
21.- Organization and operation of
securities investment companies
1. A securities
investment company is organized in the form of a joint-stock company of either
of the following types:
a/ Public securities
investment company that offers stocks to the public;
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2. Stocks of a public
securities investment company are listed and traded at the stock exchange. That
securities investment company is not obliged to redeem its issued stocks.
3. A securities
investment company that makes separate issues is entitled to offer its stocks
to no more than 99 investors, of whom each institutional investor must invest
at least VND 3 billion and each individual must invest at least VND 1 billion.
Securities investment
companies that make separate issues are not required to comply with the
regulations on investment restrictions applicable to public securities
investment companies defined in Article 92 of the Law on Securities.
4. A securities
investment company shall manage investment capital by itself or entrust a fund
management company to manage it or hire a fund management company to provide
investment consultancy and conduct transactions by itself. If a securities
investment company hires a fund management company to manage its investment
capital, the director or the general director, the deputy directors or the
deputy general directors (if any), the chairman of the board of directors and
at least two-thirds of members of the board of directors of the securities
investment company must be independent from the fund management company.
5. A foreign
securities investment company or fund being a legal entity that wishes to
invest in Vietnam shall entrust a domestic fund management company or set up a
Vietnam-based branch to manage its investment capital.
6. The Finance Ministry
specifies the organization and operation of securities investment companies.
Article
22.- Dossiers and procedures for
registration of public offering of stocks of public securities investment
companies
1. The registration of
public offering of stocks of public securities investment companies shall be
made by their founding shareholders or fund management companies.
2. A dossier for
registration of public offering of stocks comprises:
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b/ The draft charter
of the securities investment company;
c/ The prospectus
specified in Article 15 of the Law on Securities;
d/ The draft contract
on supervision;
e/ The draft contract
on investment management (in case of a fund management company that manages
investment capital);
f/ A tentative list of
the director or the general director and staffs engaged in securities business
operations of the securities investment company, enclosed with copies of their
securities practice certificates or dossiers of application for securities
practice certificates (if the company manages its investment capital by itself);
g/ A written
explanation of the material and technical foundations for investment activities
(if the company manages its investment capital by itself);
h/ The list of
founding shareholders enclosed with copies of their identity cards or
passports, for individuals, or business registration certificates, for legal
entities;
i/ The commitment of
the founding shareholders to purchase at least 20% of stocks registered for
public offering and to hold these stocks for 3 years after the establishment
and operation license is granted.
3. The dossier
specified in Clause 2 of this Article shall be made in 2 copies and sent to the
State Securities Commission.
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Article
23.- Public offering of stocks of public
securities investment companies
1. The public offering
of stocks of public securities investment companies shall comply with the provisions
of Article 90 of the Law on Securities.
2. After the
completion of a public offer of stocks, the founding shareholders or the fund
management company shall report to the State Securities Commission on the
result of the issue. At the same time, the founding shareholders shall finalize
and submit to the State Securities Commission the dossier of application for
establishment license of the securities investment company.
3. Within 30 days
after receiving the report on capital mobilization result of the securities
investment company and its valid dossier, the State Securities Commission shall
grant the establishment and operation license to the public securities
investment company. In case of refusal to grant the license, the State
Securities Commission shall reply in writing, clearly stating the reason(s)
therefor.
Article
24.- Dossiers and procedures for grant of
establishment and operation licenses for securities investment companies that
make separate issues
1. A dossier of
application for the establishment and operation license comprises:
a/ A written
application for the establishment and operation license, made by the founding
shareholders;
b/ A bank's
certification of the contributed capital amount deposited at a frozen account
opened at that bank;
c/ A written record of
capital contribution by the founding shareholders;
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e/ The list of the
founding shareholders enclosed with copies of their identity cards or passports
and judicial records, for individuals; business registration certificates and
financial statements, for legal entities;
f/ The commitment of
the founding shareholders to hold their shares for 3 years after the
establishment and operation license is granted;
g/ The documents
specified at Points b, e, f and g, Clause 2, Article 22 of this Decree.
2. If a founding
shareholder that contributes capital is a foreign legal entity, the dossier
must also contain the following documents: a valid copy of the charter or the
equivalent document, the establishment and operation license or the business
registration certificate of that legal entity granted by the country of origin
or the document certifying that it is permitted to conduct securities business
in the country of origin; a competent authority's decision on capital
contribution to establish the securities investment company in Vietnam.
3. The dossier
specified in Clause 1 of this Article shall be made in 2 copies. If a founding
shareholder that contributes capital is a foreign legal entity, the dossier shall
consist of one English version and one Vietnamese version. The dossier set in
English must be consularly legalized. Copies in Vietnamese and translations
from English into Vietnamese must be certified by a Vietnamese notary public or
a law firm having the translation function and lawfully operating in Vietnam.
4. Within 30 days
after receiving the complete and valid dossier, the State Securities Commission
shall grant the establishment and operation license to the securities
investment company. In case of refusal to grant the license, the State
Securities Commission shall reply in writing, clearly stating the reason(s)
therefor.
Article
25.- Increase or decrease of charter
capital of securities investment companies
The conditions,
dossiers and procedures for increase or decrease of charter capital of
securities investment companies shall comply with regulations of the Finance
Ministry.
Article
26.- Reporting and information disclosure
by securities investment companies
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2. Securities
investment companies that make public offering of stocks and have their stocks
listed at a stock exchange or a securities trading center shall disclose
information according to the provisions of Article 106 of the Law on Securities
and the Finance Ministry's guiding documents.
3. Securities
investment companies that make separate issues are not required to disclose
information by the mode specified in Clause 4, Article 100 of the Law on
Securities. In this case, securities investment companies shall notify
information to be disclosed to their capital-contributing shareholders by the
modes specified in their charters and concurrently report the disclosed
information to the State Securities Commission.
Article
27.- Contents of the organization and
operation charter of a securities investment company
The organization and
operation charter of a securities investment company has the following contents:
1. The name, the
address of the head office, summarized information on the securities investment
company, the fund management company (if any) and the supervisory bank;
2. The operation
objectives; investment domains; operation duration;
3. The charter capital
and regulations on increase or decrease of the charter capital;
4. Information on
founding shareholders and their shares;
5. Rights and
obligations of shareholders;
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7. The representative
at law;
8. The procedures of
adopting decisions of the company; the principles for settling internal
disputes;
9. Regulations on the
board of directors and the shareholders' general meeting;
10. Investment
restrictions;
11. Regulations on
selection of the supervisory bank; selection and change of the independent
audit organization;
12. Regulations on
transfer, issuance and redemption of shares; regulations on listing of stocks;
13. Costs and
revenues; expenditures and bonuses of the managerial apparatus of the
securities investment company and the supervisory bank; annual estimated total
cost (in case of self-management);
14. Principles for
division of after-tax profits and offsetting of business losses;
15. Mode of valuation
of net assets and net asset value of each share;
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17. Regulations on
reporting regime;
18. Cases of
dissolution, dissolution procedures and procedures for liquidation of the
company's assets;
19. Procedures of
amending or supplementing the charter of the fund;
20. The full names and
signatures of the representative at law, the founding shareholders and their
authorized representatives;
21. Other contents
agreed upon by shareholders not in contravention of legal provisions.
Article
28.- Re-registration of securities
investment enterprises established before the effective date of the Law on
Securities
1. Enterprises
established before the effective date of the Law on Securities and satisfying
the requirements in Clause 1, Article 97 of the Law on Securities are obliged
to carry out the procedures for re-registration to operate after the model of
securities investment companies within one year after that effective date under
the Finance Ministry's guidance.
2. After completing
the re-registration procedures mentioned in Clause 1 of this Article,
securities investment companies are obliged to comply with the provisions of
the Law on Securities, this Decree and relevant legal documents.
Chapter
VI
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Article
29.- Re-registration of organizations
engaged in securities activities before the effective date of this Decree
1. Organizations
listed at the Ho Chi Minh City Securities Trading Center before the effective
date of this Decree, which fail to fully satisfy the conditions for listing at
the Stock Exchange specified in this Decree, shall adjust themselves to fully
satisfy the conditions for listing at the Stock Exchange within 2 years after
the effective date of this Decree. Past that time limit, if they still fail to
fully satisfy the conditions for listing at the Stock Exchange, they shall
switch to list at the Securities Trading Center.
2. Securities
companies and fund management companies that have been granted securities
business licenses but fail to fully satisfy the condition on legal capital
specified in this Decree shall carry out the procedures for increase of capital
within 2 years after the effective date of this Decree.
3. Fund management
companies that wish to perform the operation of portfolio management shall
carry out the procedures for renewal of their establishment and operation
licenses under the Finance Ministry's guidance within 90 days after the
effective date of this Decree.
4. Representative
offices of foreign securities companies or fund management companies that have
been operating under representative office establishment licenses granted by an
agency other than the State Securities Commission before the effective date of
this Decree shall carry out the procedures for re-registration with the State
Securities Commission within one year after the effective date of this Decree.
5. Securities business
practice certificates granted before the effective date of the Law on
Securities, which are still valid for more than 6 months, shall be changed to
the new certificate form.
Article
30.- Effect of the Decree
This Decree takes effect
15 days after its publication in "CONG BAO." All previous regulations
which are contrary to this Decree are annulled.
Article
31.- Organization of implementation
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2.
Ministers, heads of ministerial-level agencies, heads of government-attached
agencies and presidents of People's Committees of provinces or centrally run
cities shall implement this Decree.
ON
BEHALF THE GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung