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THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
17/2007/TT-BTC
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Hanoi,
March 13, 2007
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CIRCULAR
PROVIDING GUIDELINES ON APPLICATION FILES FOR REGISTRATION
OF PUBLIC OFFERS OF SECURITIES
In implementation of the Law on
Securities dated 29 June 2006 and Decree 14/2007/ND-CP of the Government dated 19
January 2007 implementing the Law on Securities, the Ministry of Finance hereby
provides the following guidelines on application files for registration of
public offers of securities:
I. GENERAL
PROVISIONS
1. This Circular regulates in
detail application files for registration of public offers of securities,
application files for offers of securities overseas, and some other specific
cases.
2. Information in an application
file must be accurate and truthful, not cause misunderstanding, and contain all
the important items influencing decisions of investors.
3. The issuing organization and
any other entity involved in [preparing] the application file for registration
of a public offer of securities shall be liable for the accuracy, truthfulness
and completeness of such file pursuant to article 17 of the Law on Securities.
4. In the case of an application
file for registration of a public offer of securities in Vietnam concurrently
with an offer of the securities overseas, there must be, in addition to the data
required by these Regulations, a copy of the data registering the offer with
the competent overseas body. If the financial statements enclosed with the data
registering the offer with the overseas body were not prepared in accordance
with Vietnamese accounting standards, then there must be an explanation of the
differences between the Vietnamese standards and the standards used.
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6. The issuing organization must
make an issue announcement in three consecutive editions of a written or
electronic newspaper on the standard form in Appendix 1A or 1B issued with this
Circular, within a time-limit of seven (7) days from the date of effectiveness
of the certificate of registration of the public offer of shares or bonds.
7. The issuing organization or
underwriter must report to the State Securities Commission the results of the
offer of shares or bonds, enclosing a letter of confirmation from the bank
where the escrow account was opened of the amount of the proceeds received from
the offer tranche, within a time- limit of ten (10) days from the end of the
offer tranche. The report shall be made on the standard form in Appendix 2A or
2B issued with this Circular.
8. The application file
stipulated in section IV of this Circular shall be prepared in two sets and
sent to the State Securities Commission. In the case of the application file
stipulated in clause 3.2 of section IV, documents must be prepared in both
English language and Vietnamese language versions, and the English language
versions must be consularized. Copies in Vietnamese and translations from
English into Vietnamese must be certified by a Vietnamese notary public or by a
law firm with the function of translating and legally operating in Vietnam.
9. A fund management company or
securities investment company must notify an offer tranche to the State
Securities Commission enclosing a draft issue announcement on the standard form
in Appendix 3 issued with this Circular, seven (7) days prior to conducting the
offer tranche.
10. The State Securities
Commission shall certify the offer tranche within three days from the date of
receipt of the notification of the offer tranche referred to in clause 9 above.
In a case of refusal to certify, the State Securities Commission shall specify
its reasons in writing.
11. The fund management company
or securities investment company must make the issue announcement in an
electronic newspaper and in three consecutive editions of a central newspaper
or a local newspaper where the offer tranche is to be conducted, within three
days from the date of certification by the State Securities Commission of the
offer tranche.
12. The fund management company
or securities investment company must report to the State Securities Commission
the results of the offer, enclosing a letter of confirmation from the bank
where the escrow account was opened of the amount of the proceeds received from
the offer, within a time- limit of five days from the end of the offer tranche.
The report shall be made on the standard form in Appendix 4 issued with this
Circular.
II.
APPLICATION FILES FOR REGISTRATION OF PUBLIC OFFERS OF SHARES
1. An application file for
registration of a public offer of shares shall comprise:
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1.2 Prospectus on the standard
form stipulated by the Ministry of Finance and containing
(a) Summarized information about
the issuing organization including the scale of its managerial organization,
its business operation, assets and financial status, the board of management or
member's council or company owner, the director or general director, the deputy
director or deputy general director, and the shareholding structure (if any);
(b) Information about the offer tranche
and the shares the subject of the offer, including conditions of the offer,
risk elements, proposed plan on profit and dividends for the next year after
the issue of the shares, the issue plan and the plan for utilization of the
proceeds earned from the offer tranche;
(c) Financial statements of the
issuing organization for the last two years, satisfying the following
requirements:
- Compliance with the current
State regulated accounting regime;
- The financial statements shall
comprise the accounting balance sheet, a report on results of production and
business activities, a cash flow report and an explanation of the financial
statements;
- An issuing organization which
is a parent company must lodge consolidated financial statements in accordance
with the law on accounting, together with the financial statements of such
parent company;
- Annual financial statements
must be audited by an approved auditing organization. The opinion of the
auditor must be approval of the whole of the financial statements; but if the
auditor expresses any reservation then it must not be about an important [item]
and must be accompanied by a reasonable explanation of the basis for the
reservation;
- In a case where an application
file is lodged prior to 1 March in any one year, the annual financial
statements of the previous year in an initial application file may be
unaudited, but there must also be audited financial statements for the previous
two consecutive years;
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- If there are abnormal changes
after the last day of the accounting period of the most recent financial
statements submitted with the application file, the issuing organization must
prepare additional financial statements up until the most recent month or
quarter;
- If copy financial statements
are submitted then they must be notarized or certified by the auditor (in the case
of audited financial statements) or by the issuing organization (in the case of
unaudited financial statements).
(d) The prospectus must be
signed by the chairman of the board of management or of the member's council or
by the company chairman, the director or general director, the financial
director or the chief accountant of the issuing organization and the legal
representative of the underwriter or leading underwriter [if any]. There must
be a power of attorney if a signatory signs on behalf of another.
1.3 Charter of the company with
contents as stipulated by law.
1.4 Resolution of the general
meeting of shareholders approving the issue plan and the plan for utilization
of the proceeds earned from the share offer.
1.5 Undertaking to underwrite
the issue (if any) on the standard form in Appendix 6A issued with this
Circular. If there is a syndicate of underwriters then there must be the
undertaking of the leading underwriter together with the contract between the
members of the syndicate. The data on the undertaking to underwrite the issue
may be submitted after submission of the other data, but it must be submitted
prior to the issuance of the certificate of registration of the public offer of
shares.
1.6 Decision of the board of
management of the company approving the application file. In the case of a
public offer of shares by a credit institution, the application file must
include a letter of approval from the State Bank of Vietnam.
1.7 If a part of or an entire
application file for registration of a public offer of shares has been
certified by an affiliated organization or individual, then the issuing
organization must forward such certification to the State Securities
Commission.
2. An application file for
registration of an initial public offer of shares by an enterprise with foreign
owned capital which converts to become a shareholding company, shall comprise:
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(a) Request for registration of
the public offer of shares, on the standard form in Appendix 5A issued with
this Circular;
(b) Prospectus as stipulated in
clause 1.2 above of this section II;
(c) Charter of the company with
contents as stipulated by law;
(d) Resolution of the board of
management of the joint venture enterprise or of the owner of the enterprise
with one hundred (100) per cent foreign owned capital passing the issue plan
and the plan for utilization of the proceeds earned from the offer tranche, if
the offer is aimed at raising capital;
(dd) Decision approving the plan
on conversion from an enterprise to a shareholding company, from the State body
authorized to decide establishment of enterprises with foreign owned capital;
(e) Undertaking to underwrite
the issue (if any) as stipulated in clause 1.5 above of this section II;
(g) If the issuing organization
is a credit institution, a letter of approval from the State Bank of Vietnam;
(h) If a part of or the entire
application file has been certified by an affiliated organization or
individual, then such certification;
(i) Data on valuation of the
enterprise;
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(l) Decision approving the
application file, made by the board of management of the joint venture
enterprise or by the owner of the enterprise with one hundred (100) per cent
foreign owned capital.
2.2 In the case of an enterprise
with foreign owned capital which has already converted to become a shareholding
company:
(a) The data stipulated in
sub-clauses (a), (b), (c), (dd), (e), (g), (h), (i) and (k) of clause 2.1 above
of this section II;
(b) Resolution of the board of
management passing the issue plan and the plan for utilization of the proceeds
earned from the offer tranche, if the offer is aimed at raising capital;
(c) Decision approving the
application file, made by the board of management.
3. An application file for
registration of an initial public offer of shares by a newly established
enterprise in the infrastructure sector or in the high-tech sector shall
comprise:
(a) Request for registration of
the public offer of shares, on the standard form in Appendix 5A issued with
this Circular;
(b) Data proving that the
enterprise invests in construction of infrastructure works belonging to the
socio- economic development plan of a ministry or industry or of a province or
city under central authority; or data proving that the enterprise operates in a
high-tech sector on the list of projects for which the law encourages
investment;
(c) Charter of the company with
contents as stipulated by law;
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(dd) Undertaking from the board
of management or founding shareholders to be jointly liable for the issue plan
and plan for utilization of the proceeds earned from the public share offer
tranche;
(e) Undertaking to underwrite
the issue as stipulated in clause 1.5 above of this section II;
(g) Letter appointing a bank to
supervise utilization of the proceeds earned from the offer tranche.
4. An application file for
registration of an additional public offer of shares, of a public offer of
share purchase rights or an additional public offer of shares accompanied by
share purchase rights by a public company shall comprise:
(a) Request for registration of
the public offer of shares, on the standard form in Appendix 5A issued with
this Circular;
(b) Resolution of the general
meeting of shareholders approving the issue plan and the plan for utilization
of the proceeds earned from the share offer;
(c) Undertaking to underwrite
the issue (if any) as stipulated in clause 1.5 above of this section II;
(d) Data supplementing the
prospectus. If a period of twelve (12) months has expired since the initial
issuing tranche, there must be a new prospectus;
(dd) If the issuing organization
is a credit institution, a letter of approval from the State Bank of Vietnam.
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1. An application file for
registration of a public offer of bonds shall comprise:
1.1 Request for registration of
the public offer of bonds, on the standard form in Appendix 5B issued with this
Circular.
1.2 Prospectus on the standard
form stipulated by the Ministry of Finance and containing the items stipulated
in clause 1.2 of section II.
1.3 Charter of the company with
contents as stipulated by law.
1.4 Resolution of the board of
management or member's council or company owner, passing the issue plan and the
plan for utilization of the proceeds earned from the bond offer.
1.5 Undertaking to underwrite
the issue (if any) on the standard form in Appendix 6B issued with this
Circular. If there is a syndicate of underwriters then there must be the
undertaking of the leading underwriter together with the contract between the
members of the syndicate. The data on the undertaking to underwrite the issue
may be submitted after submission of the other data, but it must be submitted
prior to the issuance of the certificate of registration of the offer.
1.6 Decision of the board of
management or member's council or company owner approving the application file.
In the case of a public offer of bonds by a credit institution, the application
file must include a letter of approval from the State Bank of Vietnam.
1.7 If a part of or the entire
application file for registration of a public offer of bonds has been certified
by an affiliated organization or individual, then the issuing organization must
forward such certification to the State Securities Commission.
2. An application file for
registration of a public offer of guaranteed enterprise bonds shall comprise:
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2.2 Prospectus containing the
items stipulated in clause 1.2 of section II.
2.3 Charter of the company with
contents as stipulated by law.
2.4 Resolution of the board of
management or member's council or company owner, passing the issue plan and the
plan for utilization of the proceeds earned from the bond offer.
If the issuing organization is a
State owned enterprise, the issue plan and the plan for utilization of the
proceeds earned from the bond offer and repayment of capital debt must be
approved by the State owner's representative.
2.5 Undertaking from the issuing
organization to discharge obligations to investors regarding conditions of the
issue and conditions for payment, ensuring the lawful rights and interests of
investors and ensuring other conditions.
2.6 Undertaking to underwrite
the issue (if any) as stipulated in clause 1.5 above of this section III;
2.7 If a part of or the entire
application file for registration of the public offer of bonds has been
certified by an affiliated organization or individual, then the issuing
organization must forward such certification to the State Securities
Commission.
2.8 If the issuing organization
is a credit institution, a letter of approval from the State Bank of Vietnam.
2.9 Document guaranteeing
payment, accompanied by audited financial statements for the most recent year
of the underwriter guaranteeing payment.
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2.11 Contract between the bond
issuing organization and the representative of bondholders, on the standard
form in Appendix 7 issued with this Circular.
2.12 Decision of the board of
management or member's council or company owner approving the application file.
3. An application file for
registration by a shareholding company of a public offer of convertible bonds,
of bonds with securities rights or securities rights with preference shares
shall comprise:
3.1 The data stipulated in
clauses 2,1. 2.2, 2.3, 2.6, 2.7 and 2.8 above of this section III.
3.2 Decision approving the
application file, made by the board of management.
3.3 Resolution of the general
meeting of shareholders passing the issue plan and the plan for utilization of
the proceeds earned from the offer tranche.
3.4 Undertaking to discharge obligations
to investors the same as stipulated in clause 2.5 of this section III,
containing the following additional items:
- Conditions and date for
conversion of convertible bonds into shares;
- Ratio of conversion and method
for calculating price of conversion;
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3.5 Plan passed by the general
meeting of shareholders on issuing the requisite number of shares for the
conversion.
4. An application file for
registration of public offers of shares [and/or] bonds in a number of tranches
must include the following items in the prospectus:
4.1 Project or plan showing the
need to raise capital via a number of tranches.
4.2 Plan for the overall issue
specifying the proposed purchasers, volume [of shares or bonds] and proposed
duration of each issuing tranche.
If a period of six (6) or more
months has expired since the previous issuing tranche, there must be
supplementary data from the issuing organization on the company status and the
status of use of proceeds from the previous tranches.
IV.
APPLICATION FILES FOR REGISTRATION OF PUBLIC OFFERS OF PUBLIC FUND CERTIFICATES
OR SHARES IN A SECURITIES Investment Company
1. An application file for
registration of an offer of fund certificates shall comprise:
(a) Request for registration of
the public offer of fund certificates, on the standard form in Appendix 8
issued with this Circular;
(b) Issue plan and the plan for
investment of the proceeds earned from the offer tranche;
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(d) Prospectus on the standard
form stipulated by the Ministry of Finance;
(dd) Contract between the fund
management company and the custodian bank for supervision of use of proceeds
earned from the offer;
(e) Undertaking to underwrite
the issue (if any).
2. An application file for
registration of a further offer of closed fund certificates shall comprise:
(a) Request for registration of
the public offer of fund certificates, on the standard form in Appendix 8
issued with this Circular;
(b) Resolution of the general
meeting of investors approving the additional issue plan and the plan for
investment of the proceeds earned from the additional tranche;
(c) Prospectus on the standard
form stipulated by the Ministry of Finance;
(d) Confirmation from the
custodian bank of compliance with current law by the fund;
(dd) The data stipulated in
clause 1(b) above of this section IV.
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(a) Request for registration of
the public offer of shares from the fund management company or founding
shareholders, on the standard form in Appendix 5A issued with this Circular;
(b) Draft charter of the
securities investment company on the standard form stipulated by the Ministry
of Finance;
(c) Prospectus on the standard
form stipulated by the Ministry of Finance;
(d) Undertaking to underwrite
the issue (if any);
(dd) Draft supervision contract;
(e) List of founding
shareholders with copy identity cards or passports and legal files for
individuals; or business registration certificates for legal entities;
(g) Undertaking of founding
shareholders to register to purchase at least twenty (20) per cent of the
shares registered for the public offer and to hold such shares for a period of
three years from the date of issuance of the licence for establishment and
operation;
(h) Draft contract on management
of investments (if a fund management company will manage the invested capital);
(i) Other data on the founding
shareholders, members of the board of management, director or deputy director,
general director or deputy general director of the securities investment
company as stipulated by the Ministry of Finance in its guidelines on
organization and operation of fund management companies, securities investment
funds and securities investment companies;
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(l) Explanatory statement on
technical facilities for the securities operation (if the company itself will
manage its own invested capital).
3.2 If the capital contributing
founding shareholders include foreign legal entities:
The application file must
contain this additional material: valid copy of the charter or equivalent
document, and licence for establishment and operation or business registration
certificate of the foreign legal entity issued by the country of origin or data
proving such legal entity is permitted to conduct securities business in the
country of origin; and decision on the capital contribution to establish the
securities investment company in Vietnam, issued by the authorized body.
4. An application file for
registration of a public offer of shares in order to increase the capital of
the securities investment company shall comprise:
(a) Request for registration of
the public offer of shares in order to increase the capital of the company, on
the standard form in Appendix 5A issued with this Circular;
(b) Prospectus, including
additional share issue plan and the plan for use of the capital raised, on the
standard form stipulated by the Ministry of Finance;
(c) Resolution of the general
meeting of investors approving the increase of capital and the additional share
issue plan;
(d) Underwriting contract (if
any);
(dd) Confirmation from the
custodian bank of compliance with current law by the securities investment
company and fund management company (if any).
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1. This Circular shall be of
full force and effect fifteen (15) days after the date of its publication in
the Official Gazette.
2. Any difficulties during
implementation should be reported to the Ministry of Finance for resolution.
FOR THE MINISTER
OF FINANCE
DEPUTY MINISTER
Tran Xuan Ha
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