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MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No:
210/2012/TT-BTC
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Ha Noi,
November 30, 2012
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CIRCULAR
GUIDANCE ON THE ESTABLISHMENT AND OPERATION OF SECURITIES
COMPANY
Pursuant to
the Securities Law of June 29, 2006;
Pursuant to
the Law on amending and supplementing a number of articles of the Securities
Law on November 24, 2010;
Pursuant to
the Enterprise Law on November 29, 2005;
Pursuant to
Decree No. 58/2012/ND-CP of July 20, 2012 of the Government detailing and
guiding a number of articles of the Securities Law and the Law amending and
supplementing a number of Articles of the Securities Law;
Pursuant to
Decree No. 118/2008/ND-CP of November 27, 2008 of the Government defining the
functions, tasks, powers and organizational structure of the Ministry of
Finance;
At the
request of the Chairman of the State Securities Commission;
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Chapter I
GENERAL PROVISIONS
Article 1.
Scope and subject of adjustment
1. Scope of adustment: This
Circular provides for the establishment and operation of securities companies
in Vietnam.
2. Subject of adjustment
a). Securities company;
b). Organizations and individuals
related to the establishment and operation of securities companies.
Article 2.
Explanation of terms
In this Circular, the terms below
are construed as follows:
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2. Securities practitioner is the
person who has securities practice certificate, working in departments of
securities brokerage, securities dealing, underwriting securities and
securities investment consultation and has labor contract with securities
companies.
3. Valid copy is a copy which is
notarized or certified by a Vietnamese competent organization.
4. Valid dossier is dossier with
complete papers as prescribed by this Circular and contents fully declared in
accordance with regulation of the law.
5. Working capital is the
difference between current assets and current liabilities at the time of
calculation.
6. Consolidation is that two or
more securities companies of the same type (hereinafter referred to as the
consolidated securities company) are merged into a new securities company
(hereinafter referred to as the consolidation securities company) by transfer
all assets, rights, obligations and legal interests to the consolidation
securities company at the same time terminating the existence of the
consolidated securities company.
7. Merger is that a company or a
number of securities companies of the same type (hereinafter referred to as the
transferror securities company) are merged into another securities company
(hereinafter referred to as the transferree company) by transfer all the
assets, rights, obligations and legal interests to the merger receiving
securities company, at the same time terminating the existence of the
transferror securities company.
Chapter II
LICENSE FOR ESTABLISHMENT AND OPERATION
Section 1. ISSUANCE OF
LICENSE FOR ESTABLISHMENT AND OPERATION
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1. Secutiries company with its
head office, material facilities serving the securities business under the
guidance of the State Securities Commission after it is approved by Ministry of
Finance.
2. Secutiries company must have chartered
capital which is capital actually contributed, at least equal to the legal
capital as prescribed by law.
3. Director (General Director) of
securities company must meet the provisions of Clause 3, Article 34 of this
Circular.
4. Having at least three (03)
securities practitioners for each business operation requesting License of
operation.
5. Structure of shareholders,
members of equity contribution of securities company:
a). Securities company is
established in the form of joint stock company or limited liability company
with two or more members must have a minimum of two (02) founding shareholders,
the founding member is the organization which meets the provisions of Clause 7
of this Article, in which there must be at least one (01) organization as
commercial bank, insurance company or foreign organization in accordance with
provisions in Clause 8 of this Article;
b). Securities company is
established in the form of a one-member limited liability company, the Owners
shall be a commercial bank, insurance company in accordance with Clause 7 of
this Article or foreign organization under Clause 8 of this Article;
c). Ratio of share Ownership,
contributed capital of founding shareholders, founding member as an
organization is at least 65% of the chartered capital in which organizations as
commercial banks and insurance enterpries or foreign organizations specified in
Clause 8 of this Article owns at least 30% of the securities company’s
chartered capital;
d). Shareholder or member owns 10%
or more of the capital stock or contributed capital of a securities company and
the person concerned of the shareholders, that capital contributor must not
contribute more than 5% of the share or contributed capital of another
securities company;
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6. Conditions for individuals
contributing capital to establish securities company:
a) Being individual not subject to
the absence of the right to establish and manage enterprises in Vietnam in
accordance with regulations of the law and having the financial capacity to
contribute capital to establish securities company;
b) Only using their own capital
for contribution, not using borrowed capital, investment trusts capital of
other organizations and individuals;
c) Individuals who contribute
capital must demonstrate their capital contribution capacity in Vietnam dong or
a freely convertible currency in the bank account. The minimum value of money
must be equal to the amount of capital to be contributed to the securities
company and the time of confirmation of the bank shall not exceed thirty (30)
days to the date the dossier for securities company establishment is complete
and valid.
7. Conditions for organizations
contributing capital to establish securities companies:
a) Having legal entity; not in a
state of consolidation, merger, division, separation, dissolution, bankruptcy
and not subject to the absence of the right to establish and manage the
business as prescribed by law;
b) Business operations must be
profitable in two (02) years preceding the year of capital contribution to
establish securities company without accumulated losses to the time of capital
contribution for establishment of securities company;
c) In case of commercial bank,
insurance company and securities company contributing capital:
- Not being in the state of
operation control, special control or other warning states;
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d) In case of other economic
organizations contributing capital:
- Having operating time of at
least five (05) consecutive years preceding the year of capital contribution
for establishment of securities organization;
- Equity shall be at least equal
to the expected capital contribution after subtracting long-term assets;
- Working capital must be at least
equal to the expected capital contribution
e) Only using equity and other
valid capital sources under the provisions of specialized laws, do not use
trust funds of other organizations and individuals for capital contribution.
8. Foreign capital participating
in capital contribution to establish must meet the following regulations:
a) Being organization operating in
the banking, securities, insurance, and having the operation time at least two
(02) years preceding the year of capital contribution for establishment.
b). Subject to regular and
continuous monitoring of foreign specialized management and monitoring agencies
in the field of securities and approved by these agencies in writing for the
capital contribution to establish securities business organizations in Vietnam;
c). The foreign specialized
management and monitoring agencies in the field of securities and the State
Securities Commission has signed bilateral or multilateral agreements on
exchange of information, cooperation for management, inspection, monitoring of
securities activities and securities market;
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đ) The rate of capital
contribution to establish securities company of foreign organizations shall
comply with regulations of the law.
Article 4.
Dossier to request issuance of Licence of establishment and operation
1. Dosier to request the issuance
of Licence of establishment and operation of securities company includes:
a) Written request for issuance
Licence of establishment and operation (under form prescribed in Annex 1 issued
together withi this Cicular);
b) A written explanation about the
material facilities to ensure the implementation of the securities business
operations (under the form prescribed in Appendix II to this Circular) together
with documents proving the right to use head office;
c) Minutes of the meeting and
decision of the founding shareholders or founders on the establishment of
securities companies. The decision must include the following basic contents:
- Company’s name, business
operations;
- Chartered capital and Ownership
structure;
- Adoption of company ordinance
and business plan;
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d) A tentative list of the
Director (General Director) and the securities practitioner (under the form
provided in Appendix III issued together with this Circular) together with
copies of valid certificate of securities practice; Written personal
information of the Director (General Director) (under the form prescribed in
Appendix IV issued together with this Circular);
đ) List and the percentage of
Ownership of the shareholders and capital contributors (under the form provided
in Appendix V issued together with this Circular);
e) A tentative list of members of
Board of Directors, Board of Members s, Supervisory Board (if any) together
with a valid copy of identity card or passport, judicial record and written
personal information (under the form prescribed in Appendix IV issued with this
Circular);
g) Documents proving the capacity
of capital contribution of the shareholders, capital contributors to establish
securities companies:
- For individuals: A copy of valid
identity card or passport, a written personal information (under the form
prescribed in Appendix IV issued with this Circular) and documents proving
financial capacity to meet the provisions of Clause 6, Article 3 of this
Circular; Judicial record for shareholders and capital contributor from ten
percent (10%) or more of the chartered capital of the securities company;
- For organization:
A valid copy of the License for
establishment and operation or business registration certificate or other
equivalent documents; Company Ordinance; meeting minutes and decisions of the
Board of Directors, Board of Members s or Ownership of capital contribution and
appointment of representative of the contributed capital attached to a valid
copy of identity card or passport, judicial record, a written personal
information of the representative of the contributed capital (under the form prescribed
in Appendix IV issued with this Circular) and other documents proving the
satisfaction of the provisions of clause 7, Article 3 of this Circular. In case
the organization is expected to own more than ten percent (10%) of the
chartered capital of the securities company, it should supplement the judicial
record of the legal representative;
For organizational of capital
contribution as the parent company, the financial statement is the integrated
statement of the latest year whcih has been audited in accordance with the law
on accounting and auditing;
For organizations contributing
capital as commercial banks and insurance companies must submit additional copy
of periodic reports on the norms of financial and capital safety in accordance with
the specialized law in the last two (02) years;
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i) The draft of company Ordinance
has been adopted by the founding shareholders, and the founder of the
securities company.;
j) The business plan of the first
three (03) years is consistent with business operations requested for the
issuance of License (under the form prescribed in Appendix VI issued together
with this Circular) with the business processes, the internal control and risk
management processes.
2. Where the shareholders and
contribute capital contributors to establish securities company are foreign
organization, the documents issued by the foreign competent authorities must be
legalized by the agency where the organization has been registered within six
(06) months before the date of submission of application. Documents written in
a foreign language must be translated and certified into Vietnamese by an
organization with translation function in accordance with Vietnamese law.
3. Dossier specified in clause 1
and 2 of this Article shall be made in one (01) original attached to a file of
electronic information. The original dossier is submitted directly to the State
Securities Commission or sent by post.
Article 5.
Procedures for issuance of License for establishment and operation
1. After receiving the dossier specified in Article 4 of this Circular,
within twenty (20) working days, the State Securities Commission shall have a
written request for dossier supplementation in case of invalidity of dossier or
require the completion of conditions for material facilities and blockade of
contributed capital for the cases of complete and valid dossier. Where it is
necessary to clarify issues related to dossier, the State Securities Commission
may request the representative of shareholders, founders or the expected
Directors (General Director) to give direct explanation or in writing.
2. Within thirty (30) days after the State Securities Commission has a
written request, the shareholders and founders establishing securities trading organizations
must complete the dossier to request the issuance of License for establishment
and operation. After the above time limit, if the shareholders and founders do
not supplement and complete the dossier, the State Securities Commission may
refuse to issue a License for establishment and operation.
3. Within ninety (90) days from the date of receipt of written notice of
the State Securities Commission to complete the infrastructure conditions and
blockade of contributed capital, the founding shareholders and founders shall
complete the material facilities and blockade contributed capital. The
chartered capital of the company must be blockaded on account of a commercial
bank designated by the State Securities Commission and is released and
transferred to the company's account immediately after being issued License for
establishment and operation. Exceeding the time limit, the State Securities
Commission may refuse to issue License for establishment and operation.
4. The State Securities Commission shall inspect the material facilities
at the head office of securities company prior to the issuance of License for
establishment and operation.
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6. The securities company shall conduct activities of securities trading
in a period of twelve (12) months from the date of issuance of a License for
establishment and operation.
Article 6.
Name of securities company
1. Name of securities company includes the following components:
a) Type of enterprise;
b) Word “securities”;
c) Proper name.
2. Name of securities company must comply with the provisions of
Enterprise Law.
Article 7.
Announcement of the License for establishment and operation
Within seven (07) days from the
date of issuance of License for establishment and operation, the securities
company shall announce the License for establishment and operation under the
provisions of Article 66 of the Securities Law.
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Article 8.
Adjustment of License for establishment and operation
1. Securities company upon supplementation, withdrawal of securities
business operations, renaming, location of its head office, increase or
decrease of chartered capital, change of the legal representative shall request
State Securities Commission to issue the adjusted License for establishment and
operation.
2. Dossier for adjusting the License for establishment and operation shall
be made in one (01) original submitted directly to the State Securities
Commission or sent by post.
3. In case dossie to request adjustment of the License is incomplete and
invalid, the securities company shall supplement and complete the dossier
within thirty (30) days after the State Securities Commission has a written
request. After this time limit, the dossier sent to the State Securities
Commission before shall be implicitly invalid.
4. The securities company issued License for establishment and operation
shall announce the License of adjustment under the time limit and method
prescribed in Article 66 of Securities Law.
Article 9.
Supplementation of securities business operations
1. Securities company
supplementing the business operations must meet the following regulations:
a) Having material facilities to
meet provisions prescribed in Clause 1, Article 3 of this Circular for cases to
request supplementation of securities brokerage and securities dealing;
b) Having chartered capital and
equity at least equal to the legal capital for business operations which have
been licensed and business operations requested for supplementation;
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d) Securities company is not put
under control, special control, suspension from operation under current
regulations within three (03) months prior to the submission of dossier for
supplementation of business operations.
2. Dossier to request
supplementation of securities business operations includes:
a) Written request for adjustment
of the License for establishment and operation (under form prescribed in Annex
VII issued together with this Circular).
b) A written explanation about the
material facilities for business operations in case of supplementation
securities brokerage and securities dealing (under the form prescribed in
Appendix II issued together with this Circular);
c) Decision of the General Meeting
of Shareholders, the Board of Members s or the Owners on the supplementation of
securities business operation;
d) The yearly financial statement
or the most recent financial statement (but not more than 06 months to the time
of requesting supplementation of operations) independently audited and approved
by the State Securities Commission and certified by the bank for additional
capital deposited in the escrow account (if any);
e) Business operation plan in the
first three (03) years for the business operations requested for the
supplementation (in the form prescribed in Appendix VI issued together with
this Circular) together with the operation, internal control, risk management
process applied to the securities business operations requested for the
supplementation
f) List of securities practitioners
who are working in the business operation departments of the company (under the
form prescribed in Appendix III issued with this Circular); List and valid copy
of certificate of securities practice and the labor contract of the securities
practitioner and labor contract of the securities practitioner expected to
perform additional operations;
e) The Ordinance amended and
supplemented which has been adopted by the General Meeting of Shareholders, the
Board of Members s or the Owners of the securities company.
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4. Within twenty (20) days from
the date of receipt of valid dossier as prescribed in Clause 2 of this Article
and the inspection result of material facilities (if any), the State Securities
Commission shall adjust the License for establishment and operation. In case of
refusal, the State Securities Commission shall reply in writing, clearly
stating the reasons.
Article 10.
Withdrawal of securities business operations
1. Procedures for the withdrawal
of securities business operation:
a) The company securities shall
submit dossier for withdrawal of the operation of securities brokerage. The
dossier includes the following documents:
- Written request for adjusting
the License for establishment and operation of the securities company (under
the form prescribed in Appendix VII issued with this Circular);
- Decision of the General Meeting
of Shareholders, the Board of Members or Owners on the withdrawal of the
securities business operations;
- Phương án xử lý tài khoản của
khách hàng Plan for handling of customers’ accounts.
b) Công ty chứng khoán thực hiện
phương án và quy trình theo hướng dẫn của Ủy ban Chứng khoán Nhà nước;
Securities company shall implement
the plan and procedures under the guidance of the State Securities Commission
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Within seven (07) working days
from the date of receipt of the report on having implemented plans for handling
customer accounts, the State Securities Commission shall adjust the License for
establishment and operation at the same time make a Decision on revocation of
the Certificate of securities depository registration in case the securities
company have no operations of securities dealing. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reasons.
2. Procedures for withdrawal of
operation of securities investment consultation, securities underwriting and
dealing.
a) Dossier to request the
withdrawal of securities investment consultation operations, securities
underwriting and dealing.
- Written request for asjustment
of License for establishment and operation of securities company (under the
form prescribed in Appendix VII issued with this Circular);
- Decision of the General Meeting
of Shareholders, the Board of Members or Owners to on the withdrawal of
securities business operations;
- Report on the results of
processing contracts signed with customers in case of withdrawal of
underwriting and investment consultation operations; plan for finalization of
dealing accounts for cases of withdrawal of securities dealing.
b) Within seven (07) working days
from the date of receipt of complete and valid dossier as specified at Point,
clause 2 of this Article, the State Securities Commission shall adjust the
Lincense for establishment and operation for the securities company. In case of
refusal, the State Securities Commission shall reply in writing, clearly
stating the reasons.
Article 11.
Renaming of company and location of head office
1. Dossier for renaming of
company:
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b) Decision of the General Meeting
of Shareholders, the Board of Members or the Owners of the company on the
renaming of the company;
c) The Ordinance amended and
supplemented which has been adopted by the General Meeting of Shareholders, the
Board of Members s or the Owners of the securities company.
2. Dossier for change of location
of head office includes:
a) Written request for adjusting
the License for establishment and operation of the securities company (under
the form prescribed in Appendix VII issued with this Circular);
b) A written explanation about the
material facilities for business operations at the new location of the head
office (under the form prescribed in Appendix II issued together with this
Circular).
c) Decision of the General Meeting
of Shareholders, the Board of Members or the Owners of the company on the
change of location of the company’s head office.
3. The new location for the head
office of the securities company to be moved to must satisfy conditions for the
material facilities as specified in Clause 1, Article 3 of this Circular.
4. Before accepting the location
for the head office, the State Securities Commission shall inspect the material
facilities at the new location of the head office for securities company having
operations of securities brokerage and dealing.
5. Within twenty (20) days from
the date of receipt of complete and valid dossier and the result of material
facilities (if any), the State Securities Commission shall adjust the License
for establishment and operation. In case of refusal, the State Securities
Commission shall reply in writing, clearly stating the reasons.
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1. Dossier for change of chartered
capital:
a) Written request for adjusting
the License for establishment and operation of the securities company (under
the form prescribed in Appendix VII issued with this Circular);
b) Certification of the capital
increase of the bank where the blockade account is opened or the financial
statement at the time the securities company has completed the increase of
chartered capital audited by the auditing organization approved by the State
Securities Commission; the financial statement audited at the time after the
securities company has completed the acquisition and cancellation of stocks and
shares to reduce its chartered capital.
c) Report on the change of the
Ownership structure before and after the change of chartered capital of the
shareholders and capital contributor from ten (10%) or more of the chartered
capital specified at Point d, Clause 2, Article 30 of this Circular and the
Decision of the Board of Directors, Board of Members or Owners in case the
buyer is the organization;
d) Report on the result of share
offering in accordance with the law in case of increase of the chartered
capital of the joint-stock company. Report on the result of acquisition of
stocks and contributed capital and cancellation to reduce the chartered capital
for the case of reduction of chartered capital.
2. Within twenty (20) days from
the date of receipt of valid dossier as prescribed in Clause 1 of this Article,
the State Securities Commission shall adjust the License for establishment and
operation. In case of refusal, the State Securities Commission shall reply in
writing, clearly stating the reasons.
Article 13.
Change of legal representative
1. Dossier to request the change
of legal representative of the company includes:
a) Written request for adjustment of
the License for establishment and operation of securities company (under the
form prescribed in Appendix VII issued with this Circular).
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c) The amended and supplemented
Ordinance has been adopted by the General Meeting of Shareholders, the Board of
Members or the Owners for the case of changing the title of the legal representative.
2. Within twenty (20) days from
the date of receipt of valid dossier as prescribed in Clause 1 of this Article,
the State Securities Commission shall adjust the License for establishment and
operation. In case of refusal, the State Securities Commission shall reply in
writing, clearly stating the reasons.
Section 3.
SUSPENSION AND REVOCATION OF LICENSE OF ESTABLISHMENT AND OPERATION
Article 14.
Suspending operation of securities company
1. Securities company shall be
suspended from operation in the following cases:
a) Dossier for issuance and
adjustment of the License of establishment and operation with deliberately
false information.
b) After the expiration of the
time limit of warning specified in Article 74 of the Securities Law, the
securities company still has not fixed the warning state with gross losses
reaching fifty percent (50%) of the chartered capital or no longer satisfied
the conditions for the capital of securities business operation;
c) Operating with improper
purposes or not in accordance with the provisions specified in the License for
establishment and operation;
Failing to maintain the conditions
for issuing License for the establishment and operation as prescribed in Clause
1, 2, 3 and 4, Article 3 of this Circular;
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2. The State Securities Commission
shall base on the form and extent of violation of the securities company
specified in Clause 1 of this Article to make a decision on suspending one or a
number of all of the securities brokerage activities, securities dealing,
securities investment consultation, securities underwriting and securities
depository and clearly stating the time limit and scope of suspension.
3. During the time of suspension,
the securities company shall not be allowed to open new securities trading
account; not entitled to newly sign and extend contracts related to the
business operations suspended from operations; make finalization and transfer
account at customer’s request (if any); have remedial plan and report on the
implementation of the plan at the request of the State Securities Commission.
Article 15.
Revocation of License of Investment and operation
1. Securities companies revoked a
license for the establishment and operation in the following cases:
a) Cases specified at Points a, b
and c, Clause 2, Article 70 of the Law on Securities; cases in accordance with
regulations of the law on sanctioning of administrative violations in the area
of securities and securities markets; cases of revocation under the provisions
of Clause 1, Article 46 of this Circular;
b) Securities company upon
expiration of duration of operation under the Ordinance or requesting dissolution
ahead of time;
c) Securities company goes
bankrupt.
2. Within thirty (30) days from
the date of the compelled withdrawal of a License for establishment and
operation as prescribed in Clause 1 of this Article, the State Securities
Commission shall make a decision to terminate all business activities licensed
of the securities company to implement procedures for revoking License for
establishment and operation.
3. Within 24 hours, publishing
information on its website and business places of securities company and
publishing information to the Stock Exchanges, Vietnam Securities Depository
Center on the termination of all business activities which have been licensed
to perform procedures for revoking License for establishment and operation;
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b) Within fifteen (15) days,
securities company shall make a plan to handle customer’s securities trading
account opened at a securities company (if any). The plan includes the
following basic contents:
- Time and method of disclosure of
information and notification to each customer of the withdrawal of securities
brokerage operations;
- Expected time of finalization of
the transaction account (account closure or transfer) at the request of the
customer, the finalization time mathematics shall last at least 30 days;
- Time to stop opening new
accounts;
- Expected time of suspension of
trading on both exchanges
- Time of suspension of
withdrawal/deposit transaction of customers;
- Expected time of closure the
existing account balance of the customer of undue finalization;
- Plans to deal with existing
accounts and in dispute account.
4. Within forty-five (45) days
after the State Securities Commission has its opinion about the plan to deal
with customer accounts as specified in Clause 3 of this Article, the securities
company shall implement the plan in the following order:
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b) Finalizing account (closure or
transfer of account) including cash and securities at the customer’s request;
c) Within five (05) working days
from the date of expiration of the account finalization, the securities company
shall make report to the State Securities Commission on the finalization state
of all accounts and existing accounts;
d) Securities company can make
agreement to perform the transfer of securities trading account of customers to
other securities companies.
The State Securities Commission
may appoint substitute securities companies to complete the transactions and
contracts of securities company which has been revoked License for the
establishment and operation. In this case, the authorization relations are
established between the two companies implicitly.
5. Within five (05) working days
from the date of completion of the account finalization and transfer of
existing accounts, the securities company shall make report to the State
Securities Commission on the result of the implementation of the account
finalization and transfer of existing securities trading account of customers.
This provision shall not apply to securities company which has completed
procedures for account finalization (not having existing account) to the
customers.
6. Within five (05) working days
from the date of receipt of the report as specified in Clause 4 and 5 of this
Article, the State Securities Commission shall send text to securities company
to require the company and relevant parties to carry out procedures for
dissolution and bankruptcy of the company under the provisions of the
Enterprise Law and the law on bankruptcy. This text is also published by the
State Securities Commission on its website.
7. Within seven (07) working days
from the date of complete dissolution or bankruptcy of the securities company,
the legal representative of the securities company must send the original
License for establishment and operation of securities company and dossier
related to the dissolution of the company to the State Securities Commission.
Within seven (07) working days after receiving complete and valid dossiers, the
State Securities Commission shall make a decision to revoke License for
establishment and operation and implement publication of information as
prescribed.
Chapter III
ORGANIZATION OF
SECURITIES COMPANY
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Article 16.
Principles of organization
1. Branch, transaction office,
representative office are the units of the securities companie . The securities
company must take responsibility for the operation of its branch, transaction
office and representative office.
2. Name of branch, transaction office
and representative office must bear the name of the securities company attached
to the words indicating branch, transaction office and representative office
and proper name for differentiation.
Article 17.
General procedures
1. Securities company which is
established, closed and changes its location of branch, transaction office and
representative office must be approved by the State Securities Commission. The
securities company which changes its branch name, transaction office and
operations conducted at branch and changes its branch manager must request the
State Securities Commission to adjust decision to establish branches, and
transaction offices.
2. Dossier to request the approval
of the State Securities Commission and dossier to request the adjustment of
Decision on establish branch and transaction office for the contents specified
in Clause 1 of this Article shall be made in one (01) original directly sent to
the State Securities Commission or by post.
3. Where the dossier is incomplete
and invalid, the securities company shall supplement and complete dossier
within thirty (30) days after the State Securities Commission requests the
supplementation and completion of dossier in writing. After this time limit, if
the securities company does not carry out full supplementation and completion,
the dossier which has been sent to the State Securities Commission shall be
implicitly invalid.
Section 2.
BRANCH OF SECURITIES COMPANY
Article 18.
Branch establishment
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2. The establishment of branch of
securities company must meet the following requirements:
a) At the time of establishment of
a branch, the securities company is not put under control, special control,
suspension from operation under current regulations;
b) Not being sanctioned for
administrative violations in the area of securities and securities markets
within six (06) months to the time the State Securities Commission has received
dossier to establish a branch;
c) Having head office and
necessary equipment in service of the authorized securities business
operations.
d) Branch Manager of securities
company must meet the criteria specified at Points a and d, Clause 3, Article
34 and have certificate of securities practice in conformity with the business
operations which the branch is entitled to perform, and professional experience
in the area of finance, banking and securities at least two (02) years and
executive and management experience of at least one (01) year;
e) Ensuring sufficient securities
practitioner for business operations being conducted at the headquarter,
branch, transaction office and having at least two (02) securities
practitioners suitable for every business operation done at the branch expected
to be established.
3. Dossier to request the branch
establishment including:
a) Written request for branch
establishment (under form prescribed in Appendix IX issued with this Circular).
b) The decision of the Board of
Directors, the Board of Members or the Owners of the securities company on the
establishment of branches and securities business operations authorized for
branch to implement;
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d) Written explanation about the
material facilities to ensure implementation of business operations as
authorized by the securities company (under the form prescribed in Appendix II
issued with this Circular) together with documents proving the right use of
branches;
e) List of securities
practitioners of the entire Company; list of Branch Manager, securities
practitioners working at branches together with valid copy of certificate of
securities practice and labor contract signed between securities company and
securities practitioners working at branches; decision on appointment and a
written personal information (under the form prescribed in Appendix IV issued
with this Circular) of the branch Manager.
4. The State Securities Commission
shall inspect the material facilities of the head office of branch of
securities company expected to perform the operations of securities brokerage,
securities dealing before making a decision to approve the establishment of
branch.
5. Within fifteen (15) days from
the date of receipt of complete and valid dossier and results of inspection of
material facilities (if any), the State Securities Commission shall make a
decision on approval to establish branches. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reasons.
6. Branch of securities company
shall officially operate within three (03) months from the date the State
Securities Commission has approved the establishment. Beyond this time limit,
the State Securities Commission shall withdraw the decision on approval for the
establishment of branches.
Article
19.Branch closure
The branch closure shall be
implemented by the following process:
1. The securities company shall submit dossier to request the branch
closure including:
a) A written request for branch closure (under the form prescribed in
Appendix IX, issued together with this Circular);
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c) Plan for handling valid securities trading contracts signed with
customers, including contracts to provide brokerage services, investment
consultation and underwriting in which clearly stating the publication of
information and notification to customers of the branch closure and the time
limit of at least fifteen (15) days for customer to finalize their accounts.
2. Within fifteen (15) days from the date of receipt of valid dossier as
prescribed in Clause 1 of this Article, the State Securities Commission shall
make a decision on approval for the branch closure of the branch of securities
company. In case of refusal, the State Securities Commission shall reply in
writing, clearly stating the reasons.
3. Securities company shall perform the branch closure under the plan
which has been reported to the State Securities Commission.
4. Securities Company shall make report on result of branch closure.
Within five (05) days from the date of receipt of the report, the State
Securities Commission shall make a decision to revoke the decision on
establishment of branch of securities company.
Article 20.
Change of location and amendment of decision on branch establishment
1. Dossier to request the change
of branch location includes:
a) Written request for change of
the branch location (under form prescribed in Appendix IX issued together with
this Circular);
b) Written explanation about
material facilities to ensure the implementation of business operations at new
location of the branch (under form prescribed in Appendix IX issued together
with this Circular) attached to documents proving the use right Ownership of
branch office.
c) Decision of the Board of
Directors, Board of Members or Owners on the change of location of the branch.
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a) Written request for amendment
of decision on approval for establishment of branch of securities company
(under form prescribed in Appendix IX issued together with this Circular);
b) Written explanation about material
facilities in service of business operations which have been requested for
cases of supplementation of securities brokerage, securities dealing (under
form prescribed in Appendix IX issued together with this Circular);
c) Decision of the Board of Directors,
Board of Members or Owners of securities company on the supplementation of
business operations at the branch;
d) List of securities
practitioners working in the operation departments, branches, transaction
office and list of securities practitioners expected to carry out the business
operations requested for supplementation at the branch together with valid copy
of certificate of securities practice and labor contracts signed between
securities company and securities practitioners expected to performance
business operations requested for supplementation at the branch.
3. Dossier to request the
withrawal of securities business operations at the branch including:
a) Written request for amendment
of Decision on approval for establishment of branch of securities company
(under form prescribed in Appendix IX issued together with this Circular);
b) The decision of the Board, the
Board members or the owners of the securities company on the withdrawal of
business operations at the branch;
c) Plan for handling the contracts
signed with valid customers including contract to open securities trading
account, contract of securities investment consultation and contract of
securities underwriting, in which specifying the publication of and
notification to customers of the branch closure of branches and the time limit
of at least fifteen (15) days.for customer to finalize their accounts.
4. Dossier to request the renaming
of branch includes:
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b) The decision of the Board of
Directors, the Board of Members or the owners on the securities company on the
renaming of branch;
5. Dossier to request the change
of branch manager includes:
a) Written request for amendment
of decision on approval for the establishment of securities company (under form
prescribed in Appendix IX issued together with this Circular);
b) The decision of the Board of
Directors, the Board of Members or the owners on the securities company on the
change of branch name;
c) A written personal information
of branch Manager (under form prescribed in Appendix IX issued together with
this Circular) together with a valid copy of identification card, labor
contract and certificate of securities practice in accordance with the business
operations which have been authorized for performance at the branch.
6. Where the securities company
changes location for the branch, it must meet the conditions of the material
facilities as specified at Point c, Clause 2, Article 18 of this Circular.
Prior to the approval of the change of location of the branch, the State
Securities Commission shall inspect the material facilities at the new location
of the branch in case the branch perform securities brokerage and securities
dealing.
7. Within fifteen (15) days from
the date of receipt of complete and valid dossier and the result of inspection
of material facilities in case of supplementation of business operation at the
branch or change of the location of branch (if any). The State Securities
Commission shall decide to amend the decision on approval for establishment of
branch. In case of refusal, the State Securities Commission shall reply in
writing, clearly stating the reasons.
Section 3. TRANSACTION
OFFICE OF SECURITIES COMPANY
Article 21.
Establishment of transaction office of securities company
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2. The establishment of securities
company must meet the following requirements:
a) At the time of establishment of
transaction office, the securities company is not put under control, special control,
suspension from operation under current regulations;
b) Not being sanctioned for
administrative violations in the field of securities and securities market in
six (06) months to the time the State Securities Commission receives dossier to
request the establishment of transaction office;
c) Having head office and
necessary equipment in service of the support of securities business
operations;
d) Ensuring adequate securities
practitioners working at the existing head office, branch and transaction office
and having at least two (02) securities practitioners working at the
transaction office expected to be established.
3. Dossier to establish
transaction office includes:
a) Written request to establish
transaction office (under form prescribed in Appendix IX issued together with
this Circular);
b) Professional procedures done at
transaction office;
c) Written explanation about the
material facility to ensure the support the business operations of the
transaction office (under form prescribed in Appendix IX issued together with
this Circular) together with documents proving the use right of transaction
office;
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e) List of securities practitioner
list of the entire Company; lists of securities practitioners working in the
transaction office together with valid copy of certificate of securities
practice and labor contracts signed between securities company and practitioner
at the transaction office of securities companies.
4. The State Securities Commission
test facility for companies trading securities prior to making decision on
approval for establishment of the transaction office.
5. Within fifteen (15) days from
the date of receipt of a valid dossier and result of inspection of material
facilities, the State Securities Commission shall make a decision on approval
for establishment of the transaction office. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reasons.
6. The transaction office of
securities company must be officially launched the operation in three (03)
months from the date of approval of the State Securities Commission. Beyond
this time limit, the State Securities Commission shall revoke the decision on
approval for establishment of the transaction office.
Article 22.
Closure of transaction office
1. Dossier to request the closure
of transaction office includes:
a) Written request for closure of
transaction office (under form prescribed in Appendix IX issued together with
this Circular);
b) Decision of the Board of
Directors, the Board of Members or the Owners of the securities company on the
closure of transaction office;
c) Plan for handling securities
trading contracts signed with customers in effect, specifying the publication
of information and notification to customers of the closure of the transaction
office and the time limit of at least fifteen (15) days for customers to
finalize their account.
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3. The securities company shall
implement the closure of transaction office under the plan having been reported
to the State Securities Commission.
4. Securities company shall make a
report on the result of closure of transaction office. Within five (05) days
from the date of receipt of the report, the State Securities Commission shall
make a decision on approval for establishment of transaction office of
securities company.
Article 23.
Change of location and amendment of decision on approval for establishment of
transaction office
1. Hồ sơ đề nghị thay đổi địa điểm
phòng giao dịch bao gồm Dossier to request the change of location of
transaction office:
a) Written request for the change
of location of transaction office (under form prescribed in Appendix IX issued
together with this Circular);
b) Written explanation about the
material facilities to ensure the support of business operations at the new
location of the transaction office (under form prescribed in Appendix IX issued
together with this Circular) together with documents proving the use right of
transaction office.
c) Decision of the Board of
Directors, Board of Members or Owners of the change of location of transaction
office.
2. Dossier to request the renaming
of transaction office:
a) Written request for amendmentof
decision on approval for the establishment of transaction office of securities company
(under form prescribed in Appendix IX issued together with this Circular);
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3. Securities company changes the location
of transaction office must meet the conditions of the material facilities as
prescribed at Point c, Clause 2, Article 21 of this Circular. The State
Securities Commission shall inspect the material facilities at the new location
of the transaction office.
4. Within fifteen (15) days from
the date of receipt of complete and valid dossier and the result of inspection
of material facilities, the State Securities Commission shall decide to amend
the decision on approval for the establishment of transaction office. In case
of refusal, the State Securities Commission shall reply in writing, clearly
stating the reasons.
Section 4.
REPRESENTATIVE OFFICE OF SECURITIES COMPANY
Article 24.
Establishment of representative office
1. Representative office is a unit
of securities company. The location of the representative office is not within
the province or city where the company locates its head office or branch.
2. Sphere of activities of a
representative office shall include one, some or all of the following contents:
a) Performing the functions of
communication and market research office;
b) Promoting development of
cooperation projects in the field of securities and securities market at the
location of the representative office;
c) Promoting and monitoring the
implementation of the projects and the signed contracts related to the
company’s field of operation.
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4. The establishment of
representative office of securities companies must meet the following
requirements:
a) At the time of establishment of
representative offices, the securities company is not put under control,
special control or suspended from operation in accordance with current
regulations;
b) Not being sanctioned for
administrative violations in the field of securities and securities market
within six (06) months to the time the State Securities Commission receives
dossier for the establishment of representative offices;
c) Having representative office.
5. Dossier to request the
establishment of representative office includes:
a) Written request for
establishment of representative office(under form prescribed in Appendix IX
issued together with this Circular);
b) Decision of the Board of
Directors, the Board of Members or the owners of the securities company on the
establishment of a representative office, specifying the sphere of activities
of the representative office;
c) Documents proving the use right
of representative office.
6. Within fifteen (15) days from
the date of receipt of valid dossier, the State Securities Commission shall
make a decision on approval for establishment of representative office. In case
of refusal, the State Securities Commission shall reply in writing, clearly
stating the reasons.
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1. Representative office of
securities company shall be closed in the following cases:
a) Voluntary termination of
operation;
b) Place for establishment
representative office already has branch or head office of securities company.
2. Dossier to request the closure
of representative office includes:
a) Request for closure of
representative office (under the form prescribed in Appendix IX issued together
with this Circular);
b) Decision of the Board of
Directors, the Board of Members or the owners of the securities company on the
closure of representative office.
3. Within fifteen (15) days from
the date of receipt of valid dossier as prescribed in Clause 2 of this Article,
the State Securities Commission shall make a decision on approval for the
closure of representative office and withdrawal of decisions on establishment
of a representative office.In case of refusal, the State Securities Commission
shall reply in writing, clearly stating the reasons.
Article 26.
Change of location and amendment of decision on approval for the establishment
of representative office
1. Dossier to request the change
of location of representative office includes:
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a) Decision of the Board of Directors,
the Board of Members or the Owners on relocation of representative office;
b) Documents proving the use right
of representative office.
2. Documents to request the
renaming of representative office includes:
a) Written request for amendment
of decision on approval for establishment of representative office of
securities company (under the form prescribed in Appendix IX issued together
with this Circular);
b) Decision of the Board of
Directors, the Board of Members or the Owners on the renaming of representative
office.
3. Within fifteen (15) days from
the date of receipt of valid dossiers, the State Securities Commission shall
decide to amend decision on approval for the establishment of a representative
office.In case of refusal, the State Securities Commission shall reply in
writing, clearly stating the reasons.
Chapter IV
MANAGEMENT AND
ADMINISTRATION OF SECURITIES COMPANY
Article 27.
Principles of management and administration
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2. Securities company shall be
honest with clients and not infringe upon the property, rights and legitimate
interests of the customers.
3. Securities company must clearly
define responsibilities between the General Meeting of Shareholders, the Board
of Members, Owners, Board of Directors, Supervisory Board, Management Board in
accordance with the Securities Law, the Law on Enterprises and the provisions
of the relevant laws.
4. Securities company shall set up
communication information system with shareholders and members to ensure
adequate provision of information and fair treatment among shareholders and
members, to ensure the rights and legitimate interests of the shareholders and
members.
Article 28.
Administrative apparatus of the securities company
1. Administrative apparatus of the
securities company is a joint stock company including the General Meeting of
Shareholders, Board of Directors, Supervisory Board and Management Board.
2. Administrative apparatus of the
stock company is a limited liability company members, the company responsible
for two or more members, including Board of members, Supervisory Board and
Management Board.
3. Chairman of the Board, Chairman
of the Board of Member or the Director (General Director) is the legal
representative of the company as stipulated in the company Ordinance.
Article 29.
Shareholders and members
1. Founding shareholders and
founding member of securities company are not entitled to transfer their shares
and initial contributed capital within three (03) years from the date of the
issuance of License for establishment and operation, except where transferred
to the other founding shareholders and founding members. During this period,
commercial banks, insurance companies or foreign organizations in accordance
with Clause 7, Clause 8, Article 3 of this Circular must always hold at least
thirty percent (30%) of company’s chartered capital.
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3. Shareholders and members
holding ten percent (10%) or more of the chartered capital of a securities
company must not take advantage to harm the rights and interests of the company
and other shareholders.
4. Shareholders and members
holding ten percent (10%) or more of the company’s chartered capital must fully
notify to the securities company within twenty-four (24) hours after receiving
information for the following cases:
a) A number of shares or
contributed capital has been blockaded or pledged or handled by the court's
decision;
b) Shareholders, members of the
organization which has made decision on renaming or merger, separation,
dissolution and bankruptcy.
5. Securities company shall make
report to the State Securities Commission on the cases specified in Clause 4 of
this Article within five (05) days after receiving notice of the shareholders
or members.
Article 30.
Transaction changes ownership of shares or contributed capital accounted for
10% or more of securities company’s contributed chartered capital.
1. Transaction of transfer of shares or contributed capital to become
shareholders or capital contributor holding from ten percent (10%) or more of
the securities company’s contributed chartered capital must be approved by the
State Securities Commission, except the case where the securities company's
stocks are listed or registered for trading at the Stock Exchange and the case
of transfer by the court’s decision.
2. Dossier to request the approval for transaction includes:
Written request for transfer of
shares or contributed capital (under the form prescribed in Appendix IX issued
together with this Circular);
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b) Principle contract of the transfer which has been approved by the
transferer and transferee;
c) Written personal information (under the form prescribed in Appendix IV
to this Circular) together with a valid copy of identity card of new
shareholders in case the new shareholders are individuals or copy of the
business registration certificate for the case where the new shareholder is a
legal entity;
d) Decision of the Board of
Directors, Board of Members or Owners of the transferor and the transferee in
case transferor and the transferee are organizations;
e) Written certification of securities company on the validity of the
transfer.
f) In case the transaction changes the ownership of shares and contributed
capital with foreign elements, documents written in a foreign language must be
translated and certified into Vietnamese by an organization having the
translation function in accordance with regulation of Vietnamese law translated
into Vietnamese authentication. The documents issued by the foreign competent
State authorities must be legalized in accordance with relevant laws.
3. Dossier to request approval for transaction shall be made in one (01)
original submitted directly to the State Securities Commission or sent by post.
4. Within fifteen (15) days from the date of receipt of valid dossier, the
State Securities Commission shall approve the transaction in writing. In case
of refusal, the State Securities Commission shall reply in writing, clearly
stating the reasons.
5. The parties concerned shall complete the transaction procedures
approved within ninety (90) days after the effective date of written approval
of the State Securities Commission. If the transfer has not completed within
the above time limit, the written approval of the State Securities Commission
shall be implicitly invalid.
6. Within five (05) days from the completion date of transaction of the
transfer, the securities company shall make a report on result of dealing to
the State Securities Commission under the form prescribed in Appendix XIII
issued together with this Circular.
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1. Securities company shall
develop internal processes on procedures and order for convening and voting at
the General Meeting of Shareholders, the Board of members and must be approved
by the General Meeting of Shareholders and the Board of Members.
2. Securities company is a
joint-stock company to hold the annual General Meeting of Shareholders within
four (04) months from the end of the financial year. If not held within the
time limit specified above, the securities company shall make a report to the
State Securities Commission in writing, clearly stating the reasons and must
hold the annual General Meeting of Shareholders withintwo (02) months.
3. Securities company shall make a
report on the result of the General Meeting of Shareholders and the Board of
Members together with the resolutions and other relevant documents to the State
Securities Commission within five (05) working days from the end date of the
General Meeting of Shareholders and the Board of Members.
Article 32.
Board of Directors and Board of Members
1. Members of the Board of
Directors, members of the Board of members of the securities company shall not
be a member of the Board of Directors, members of the Board of Members, the
Director (General Director) of another securities company.
2. Function and tasks and contents
authorized for the Board of Directors, Board of Members must be specified.
3. Function and tasks of each
member of the Board of Directors, Board of Members must be specified.
4. Board of Directors and Board of
Members shall develop the internal process on procedures and order for
convening and voting at the meeting of Board of Directors and Board of Members.
5. Board of Directors and Board of
Members shall set up divisions or appoint persons to perform the tasks of risk
management as prescribed in Clause 1, Article 35 of this Circular and the tasks
of internal control in accordance with Clause 1, Article 36 of this Circular.
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1. Head of the Supervisory Board
of the securities company is not concurrently a member of the Supervisory Board
or manager of another securities company.
2. Supervisory Board shall develop
the control procedures which must be approved by the General Meeting of
Shareholders or the Board of Members.
3. For the Supervisory Board has
two (02) or more members, the Supervisory Board must hold meeting at least two
(02) times in a year. Minutes of the meeting must be recorded truthfully with
full content of the meeting and must be kept as prescribed.
4. Upon detecting members of the
Board of Directors, members of the Board of members and Management Board to
violate the law, the company Ordinance resulting in infringement of the rights
and interests of companies. The shareholders, owners or customers, the
Supervisory Board shall require explanation in a certain period of time or
request a convening of the General Meeting of Shareholders, the Board of
members and owners for settlement. For violations of the law, the Supervisory
Board shall report in writing to the State Securities Commission within seven
(07) working days from the date of detection of the violation.
Article 34.
Management Board
1. Director (General Director) who
runs the daily business of securities companies, subject to the supervision of
the Board of Directors, the Board of members and take responsibility before the
Board of Directors, the Board of Members and the law for the implementation of
the rights and duties assigned to them.
2. Director (General Director), Deputy
Director (Deputy General Director) of the securities company must not work at
the same time for securities company, fund management company or other
businesses; Director (General Director) of securities company must not be a
member of the Board of Directors, members of the Board of members of other
securities companies.
3. Director (General Director) of
the securities company must meet the following criteria:
a) Not being a person who has been
or is subject to criminal prosecution, imprisonment or deprivation of the right
to practice by the court as prescribed by law;
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c) Having Certificate of financial
analysis practice of Certificate of fund management practice.
d) Not being sanctioned by the
State Securities Commission under securities laws and stock market within the
past two (02) years.
4. Deputy Director (Deputy General
Director) in charge of the professional department must meet the criteria
specified at Points a and d, as provided for in Clause 3 of this Article,
having certificate of securities practice in accordance with the sphere
assigned with professional experience in the fields of finance, banking,
securities of at least two (02) years of executive and management experience of
at least two (02) years.
5. Securities company shall build
the Management Board working regulations which must be approved by the Board of
Directors and Board of Members. These working regulations must contain the
following contents:
a) Responsibilities and specific
duties of the members of the Board of Directors;
b) Quy định trình tự, thủ tục tổ
chức và tham gia các cuộc họp Regulations on the order and procedures for
organizing and participating in meetings;
c) Responsibilities for report of
the Management Board to the Board of Directors, the Board of Members and
Supervisory Board.
Article 35.
Risk management
1. Functions and principles of
operation of the risk management department done by the Board of Directors and
Board of members:
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b) Independently assessing the
appropriateness and compliance with policies and risk process set in the
company;
c) Inspecting, reviewing and
assessing the adequacy, efficiency and effectiveness of the risk management
system under the Board of Directors in order to improve this system.
2. The Board of Directors shall
set up and maintain a system of risk management, including process, machine and
personnel to ensure the prevention of the risks that may affect the interests
of the company and customers of the company. The system of implementation of
risk management shall perform the following tasks:
a) Determination of policy of
implementation and the level of risk acceptance of the company;
b) Determination of company’s
risks;
c) Risk measurement;
d) Monitoring, prevention,
detection and handling of risk.
3. The State Securities Commission
shall make guidance for the system of risk management applied to securities
companies.
Article 36.
Internal audit
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c) Independently assessing the
suitability and compliance with policies and law, Ordinance and decision of the
General Meeting of Shareholders, Owners, Board of Directors and Board of
Members;
d) Inspecting, reviewing and
assessing the adequacy, efficiency and effectiveness of the internal control
system under the Board of Directors in order to improve the system;
e) Assessing the compliance of
business operation for policies and internal process.
f) Advising the establishment of
internal policies and procedures;
g) Assessing the compliance with
regulations of the law and control of asset safety measures;
h) Assessing the process of
determination, assessing and managing business risks;
i) Assessing the effectiveness of
the activities;
k) Assessing the compliance with
commitments in the contract;
l) Performing the control of
information technology system;
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n) Performing internal audit
inside the securities company and subsidiaries of securities companies
2. Activities of internal audit
must ensure the following principles:
a) Independence: the internal
audit department is independent from other departments of the securities
company, including executive committee; internal audit activities is
independent from the activities of operation and business of securities
company; staff performing internal audit are not permitted to take on work
subject of internal audit and work in professional departments such as
brokerage, dealing, analysis, investment consultation, underwriting and risk
management;
b) Objectivity: the internal audit
department and staff of internal audit department must ensure the objectivity,
fairness, non-prejudice in the course of their duties. The securities company
must ensure that internal audit does not bear any intervention upon comply with
its duties;
Staff of internal audit must
demonstrate the objectivity in the process of gathering, assessing and
communicating information on activities or processes or system which has been or
is being audited. Internal auditors need to make a fair assessment of all
relevant issues and not be dominated by private interests or goals by anyone
else upon making their remark and assessment;
c) Honesty: internal auditors must
perform their work honestly, diligently and responsibly; comply with the law
and carry out the work contents publicly in accordance with the law and career;
d) Security: staff of internal
audit department should respect the value and ownership of information
received, not netitled to disclose information without a valid authorization
unless obliged to disclose information in accordance with the law and internal
regulations of the company.
3. Personnel requirements of the
internal audit department
a) Person of this department not
being the person who has been sanctioned from fine or more for violations in
the field of securities, banking and insurance within the past five (05) years
to the year when appointed;
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c) Not being the person in
relation with the heads of professional departments, person performing
operation, Director (General Director), Deputy Director (Deputy General
Director) and branch manager of securities company.
d) Having Certificate of basic
issues of securities and securities markets and certificate of securities law
and the stock market or certificate of securities practice;
e) Not performing other works in
securities company.
Article 37.
Internal control
1. Securities company shall
establish internal control department under the Board of Directors (Board of
General Directors).The internal control system includes processes, apparatus,
independent and responsible staff.
2. Internal control department
under the Board of Directors is responsible for the compliance of the following
contents:
a) Examining and monitoring the
compliance with legal provisions, company Ordinance, decision of the General
Meeting of Shareholders, the Board of Directors’s decision, regulations,
business processes, processes of risk management of the company, the relevant
departments and securities practitioners in the company;
b) Monitoring the implementation
of internal regulations, the activities of potential conflict of interest
within the company, especially for the business activities of the company and
the employee's personal transactions; monitoring the implementation of the
officials and employees’ duties in the company and partners’ duties for the
authorized activities.
c) Checking the contents and
monitoring the implementation of the rules of professional ethics;
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e) Separating customers’ assets;
f) Preserving and keeping
customers’ assets ;
g) Controlling the compliance with
the provisions of the law on the prevention of money laundering;
h) Other contents assigned by
Director (General Director)
3. Securities company shall
establish internal control system including organizational structure,
procedures, internal regulations applied to all locations, units, departments
and operations of the company in order to ensure the following goals:
a) Operations of securities
company shall comply with the provisions of the Securities Law and other
relevant documents
b) Ensuring customers’interests;
c) Operations of securities
company are safe and effective; protecting, managing and using assets and
resources safely and effectively;
d) Financial information systems
and management information are honest, reasonable, adequate, timely and honest
in the preparation of the company’s financial statements.
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a) Head of internal control
department must have qualification in law, accounting and auditing and have
adequate experience, reputation and authority to effectively execute the
assigned tasks;
b) Not being the person in
relation with the heads of professional departments, person performing
operation, Director (General Director), Deputy Director (Deputy General
Director) and branch manager of securities company.
c) Having Certificate of basic
issues of securities and securities markets and certificate of securities law
and the stock market or certificate of securities practice;
d) Not performing other works in
securities company.
Article 38.
Management of securities practitioners
1. Except for the case appointed
as the representatives of the contributed capital or appointed to the company’s
management of the organization owning securities companies or organization
whose securities company has its investment, the securities practitioners shall
not:
a) Simultaneously work for other
organizations having ownership relations with the securities company where they
are working;
b) Simultaneously work for other
securities companies and fund management companies’
c) Simultaneously be Director
(General Director) of an organization offering securities to the public or
listing organization.
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3. The securities practitioners
are the ones representing the securities company to execute transactions with
customers and the securities company is responsible for all activities of the
securities practitioners when carrying out the business of the securities
company. The securities practitioners are not entitled to use money or
securities in the customer's account when they are not authorized under the
trust of customers to a securities company in writing.
4. The Securities practitioners
must participate in mandatory training courses on legal documents,
transactional systems, new types of securities held by the State Securities
Commission and the Stock Exchange.
Chapter V
MANAGEMENT OF
FINANCIAL SECURITY
Article 39.
Increase and decrease of chartered capital
1. Increase in chartered capital
a) Securities company is not
entitled to adjust the increase in chartered capital when it has not officially
conducted operations of securities business;
b) Securities Company is a limited
liability company which implements the increase in its charter capital in the
forms prescribed by the Enterprise Law. Before making an increase in capital,
the securities company must make a report to the State Securities Commission.
The reporting dossier includes:
- Notification of increase in
chartered capital;
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- List of new capital contributors
and members contributing from ten percent (10%) or more of the securities
company ‘s chartered capital together with the documents specified at point
Article, Clause 2, Article 30 of this Circular.
c) Securities Company is a joint
stock company which is entitled to increase in chartered capital by the
following forms:
Issuance of new stocks to increase
chartered capital shall comply with the relevant provisions of law, including
the mode of conversion of debt into contributed capital as agreed between the
creditor and securities company;
Conversion of bonds issued to
shares in accordance with the laws;
Transfer of capital surplus,
retained earnings and other valid sources to supplement the increase in
chartered capital. Securities company is entitled to use capital surplus due to
the difference between the sale price and the cost of acquisition of treasury
stocks to increase chartered capital after selling out treasury stocks.
Securities company can use capital surplus due to the difference between the
sale price and the par value of the stocks issued to increase chartered capital
after one year from the end of the issue.
d) Before implementing capital
increase in the form of bond conversion and form of transfer of valid resources
specified at Point c, Clause 1 of this Article, the securities companies must
be registered with the State Securities Commission. The registration documents
include:
In case of conversion of bonds
into shares: The decision of the General Meeting of Shareholders on approving
the plan for issue together with the plan for conversion of bonds into shares
which has been approved by the General Meeting of Shareholders;
In case of transfer of valid
sources to increase the capital stock: The decision of the General Meeting of
Shareholders approving the plan for issue; Financial statement report with the
latest audit and other necessary documents proving the legal capital source
used to increase the chartered capital.
2. Reduction of chartered capital
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b) Securities company is a limited
liability company with two or more members, or joint-stock company which is
entitled to buy back shares and contributed capital of the shareholders and the
members to reduce its chartered capital. The shares and contributed capital of
the shareholders and the members after the acquisition to reduce its chartered
capital must be destroyed immediately;
c) Conditions for securities
company to buy back shares and contributed capital to reduce its chartered
capital include:
- Thời gian hoạt động tối thiểu ba
(03) năm kể từ ngày được cấp Giấy phép thành lập và hoạt động Operating time is
at least three (03) years from the date of issuance of License for the
establishment and operation;
- General Meeting of shareholders,
Board of Members shall approve the reduction of chartered capital and plan for
reduction of chartered capital;
- On the basis of the audited
financial statement in the latest period to demonstrate sufficient capital to
buy back stocks and contributed capital from the following sources: surplus of capital
stock or development investment fund or after-tax profits not distributed or
other equity sources used for acquisition in accordance with the law;
- There must be approval from the
creditors for capital reduction if at the time of of capital reduction, the
company has the obligation to pay debt;
- After the capital reduction, the
securities company shall ensure payment of all debts and other asset
obligations while ensuring sufficient legal capital for the securities business
operations licensed under current regulations, the ratio of disposable funds
after the acquisition of stocks and contributed capital reaching a minimum of
180% or more.
d) Before performing the reduction
of capital, the stock company, the securities company must make report to the
State Securities Commission. The reporting dossier include:
- Notification of reduction of
chartered capital;
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- Financial statement audited by
audit organizations and approved by the State Securities Commission closest to
the time of the decision on chartered capital reduction;
- Opinion of the creditors about
capital reduction with certification of independent audit organization approved
by the State Securities Commission;;
- Commitment of the Board of
Directors, members of the Board of Members to ensure the payment of all debts
and other asset obligations after the capital reduction.
3. Within fifteen (15) days from
the date of receipt of a valid document on the increase or reduction of capital
as prescribed in Clauses 1 and 2 of this Article, the State Securities Commission
shall reply to the securities company in writing the increase or reduction of
capital.
4. After completing the
implementation of the capital increase, acquisition of stocks and contributed
capital to reduce capital, the securities company shall perform procedures for
adjustment of License for establishment and operation as specified in Article
12 of this Circular.
Article 40.
Financial security norms
1. The securities company must
ensure financial security norms as prescribed by the Ministry of Finance.
2. Making report on the ratio of
disposable funds on June 30 annually to be reviewed and on December 31 annually
to be audited by an independent auditing organization approved by the State
Securities Commission.
3. The State Securities Commission
shall publish the information on it website on securities companies controlled
and specially controlled and other relevant information to protect investor for
a period of twenty-four (24) hours after the decision on putting the securities
company in the state of control and special control.
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1. Except for the case to buy
individual stocks at the request of the customer or purchase for trading error
correction in accordance with regulations of the Securities Depository, the
securities company as a joint-stock company entitled to buy back no more than
ten percent (10%) of the number of ordinary shares issued as treasury stocks.
2. The securities company only
uses the retained earnings, capital surplus and other sources (excluding financial
reserve fund) as prescribed by law to purchase treasury stocks. After the
purchase of treasury stocks, the securities company must ensure that the
minimum equity is equal to the legal capital in accordance with the provisions
of the law.
The above provisions shall be
calculated according to the financial statements or the consolidated financial
statements (in case the securities company is the parent company) with the
latest audit but not more than six months prior to the expected time to buy treasury
stocks.
3. The purchase or sale of
treasury stocks must be approved by the company’s Board of Directors.
4. Securities company only sell
treasury stocks after six (06) months from the end date of the most recent
purchase of treasury stocks, except for distribution to employees in the
company or as bonus stocks. Where used as bonus stocks to employees must be
approved by the General Meeting of Shareholders to ensure reciprocal funds from
the equity.
5. Securities company carries out
the purchase or sale of treasury stocks must have a plan to buy or sell
treasury funds specifying execution time, the principles of price determination
and make report to the State Securities Commission in writing and publish
information within seven (07) days before the date of the purchase or sale of
treasury stocks. Report and publication of information include the following
main contents:
a) Purpose of purchase or sale of
treasury stocks;
b) Maximum number of stocks
expected to be bought or sold;
c) Capital source for purchase;
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e) Time for transaction
performance;
f) Price expected for performance.
6. Within ten (10) days after the
end of the transaction to purchase or sell treasury stocks, the securities
company must make a report to the State Securities Commission and publish
information, the reason if it is not donethe number of stocks to buy or sell
fund shares.
7. Securities company is not
allowed to buy treasury stocks in the following cases:
a) Company has overdue debts;
b) Company is in the process of
offering stocks for addtional capital mobilization;
c) Company is implementing the
splitting, consolidation of stocks;
d) Company is implementing the
sale of stocks;
e) Stocks of the company are
subject to the tender offer.
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9. Securities company is not
entitled to purchase stocks as treasury stocks
a) Stocks of the major
shareholders, the company manager and persons concerned as specified of the
Securities Law, except that stocks of securities company were listed on the
Stock Exchange;
b) Shares are transfered with
restrictions as prescribed by law and the company Ordinance.
10. Where securities company sells
preferred treasury stocks to the subjects mentioned at Point a, Clause 9 of
this Article, the sale must be approved by the General Meeting of Shareholders,
the subjects concerned are not entitled to vote.
11. Securities company is not
entitled to change but carry out plans for purchase and sale of treasury stocks
reported and published. In case of failure of implementation, the securities
company must have a good reason and a written explanation to the State
Securities Commission and notify information as prescribed.
12. Where the sale of treasury
shares in the form of public offering of securities, securities companies must
comply with the provisions of the offering of securities to the public.
Article 42.
Loan restriction
1. Ratio of total debt to equity
of securities company shall not exceed three (03) times. Value of total debt
shall not include the following amounts:
a) Customers’ deposit for
securities transaction;
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c) Provision for allowance for job
loss;
d) Provision for compensation to
investors.
2. The securities company's
short-term debt is equal to current assets maximally.
Article 43.
Lending restriction
1. Securities companies is not
entitled to lend money and securities in any form, except the case where the
securities company lends money to customers to purchase securities under the
provisions of margin trading of securities of the Ministry of Finance.
2. Securities company is not
entitled to make lending in any form to major shareholders, members of the
Supervisory Board, the members of Board of Directors, members of the Board of
Members, members of the Management Board, Chief Accountant and other managerial
positions which are appointed by the Board of Directors and persons concerned
of the above subjects.
Article 44.
Investment restriction
Securities company is not entitled
to purchase and contribute capital to buy real estate except for use as its
head office, branches and transaction offices in direct service to the business
operations of securities company.
1. Securities company shall buy,
invest in real estate in accordance with provisions in Clause 1 of this Article
and fixed assets on the principles of residual value of fixed assets and real
estate shall not exceed fifty percent (50%) of the total asset value of the
securities company.
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3. Stock company may not directly
or entrust the implementation to other organizations and individuals.
4. Investment in stocks or
contributed capital of the company owning more than fifty percent (50%) of the
company’s chartered capital, except for odd-lot stock at the customer’s
request;
a) Together with persons concerned
to invest from five percent (5%) or more of another securities company’s
chartered capital;
b) Investing more than twenty
percent (20%) of the total number of stocks and treasury certificates in
circulation of a listed company;
c) Investing or contributing
capital more than ten percent (10%) of the total contributed capital of a
limited liability company or business project;
d) Investing more than fifteen
(15%) of equity in an organization.
5. Securities company has been
established and has acquired fund management company as subsidiary company. In
this case, the securities company must not comply with the provisions of Point
c, d and e, Clause 4 of this Article. The securities company expected to
establish and buy back fund management company as subsidiary company must meet
the following conditions:
a) The equity, after capital
contribution for establishment and acquisition of fund management company, must
be at least equal to the legal capital for the business operations the company
are performing;
b) The ratio of disposable funds
after capital contribution for the establishment or acquisition of fund
management company must reach at least one hundred eighty percent (180%);
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6. Where securities company makes
investment exceeding the limit due to the underwriting in the form of firm
commitment, due to consolidation, merger or asset volatility, the equity of the
securities company or organization contributing capital, the securities company
must adopt the necessary measures to comply with the investment limit specified
in Clause 2, 3 and 4 of this Article within one (01) year.
Chapter VI
OPERATION OF
SECURITIES COMPANY
Section 1.
GENERAL PROVISIONS
Article 45.
Principle of operation
1. Securities company shall issue
business processes, internal control procedures and risk management applied to
the licensed business operations.
2. Securities company shall
promulgate rules of practice ethics in accordance with the company's business
operations.
3. Securities company must ensure separation of working offices,
personnel, data systems and report between departments to ensure the avoidance
of conflicts of interest between securities company with customer or between
customers themselves. The securities company shall notify to customers on
conflicts of interest which may arise between securities companies, securities
practitioners and customers.
4. Securities company must allocate securities practitioners having
certificates of securities practice in accordance with the business operations.
Securities practitioners performing securities dealing operations must not
simultaneously carry out the securities brokerage.
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6. Securities companies must not disclose information on customer, except
for the case agreed by the customer or at the request of the competent state
management.
7. Securities company must not perform behavior which can mislead the
customers and investors about stock prices.
8. Securities company predicting stock price or recommend trading related
to a specific class of securities on the media must specify the basis of
analysis and information sources cited.
Article 46.
Temporary suspension of operation
1. Securities companies temporarily suspending securities trading at the
head office, branches, transaction offices must be approved by the State
Securities Commission. The suspension period shall not exceed ninety (90) days.
Beyond this time limit, the State Securities Commission shall revoke the
License for establishment and operation or relevant decision on establishment.
2. Dossier to request the approval for temporary suspension of operation
is made into one (01) original submitted directly to the State Securities
Commission or sent by post. Dossier to request the approval for temporary
suspension of operation includes:
a) Written request for suspension of operation (under the form prescribed
in Appendix XIV issued together with this Circular);
b) Decision of the Board of Directors, Board of Members or the Owner of
the securities company on the temporary suspension of operations;
c) Plan for handling contracts signed with customers in effect.
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4. Securities company shall report to the State Securities Commission
within twenty-four (24) hours after the head office, branches and transaction
offices work again.
Section 2.
SECURITIES BROKERAGE OPERATION
Article 47.
Responsibility for securities brokerage
1. Securities companies must allocate securities practitioners to work in
the following positions:
a) Consultation, contract
explanation and implementation of procedures for opening securities trading
account to customers;
b) Consultation of securities
trading to customers;
c) Receiving of order and control
of securities trading order of customer;
d) Heads of departments relating
to the securities brokerage operations.
2. Securities company must comply with money laundering prevention and
fighting in accordance with current regulations.
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4. Securities company performing brokerage operation must not:
a) Give an opinion on the increase or decrease in the securities price
without foundation to entice customers to participate in the transaction;
b) Make agreement or offer specific interest rate or share profits or
losses with customers to entice customers to participate in the transaction;
c) Directly or indirectly setting the fixed location outside trading
venues have been approved by the State Securities Commission to sign a
brokerage contract with customers, receive orders, execute securities
transactionssecurities or settle securities transactions with customers;
d) Receiving order and making payment of trading with the person who is
not the trading account holder without any written authorization of the account
holder;
đ) Disclosing contents of
customers’ trading order or other confidential information when conducting
transactions for customers without having to disclose information or at the
request for inspection and examination in accordance with regulations of law;
e) Using name or customers’
accounts for securities registration and trading;
g) Infringing customers’ property,
rights and interests
Article 48.
Opening trading account
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2. Securities company is obliged to explain contract to open securities
trading accounts and related procedures when implementing securities
transactions for customers, finding out the financial capacity and the ability
to tolerate risk and expect gained profit of customers.
3. The contract to open securities trading accounts specified in Clause 1
of this Article must not contain the following agreements:
a) Agreement in order to avoid legal obligation of securities company
without plausible reasons;
b) Agreement to limit the scope of compensation of the securities company
without plausible reasons or transfer of risk from securities company to
customers;
c) Agreement to compel customers to execute unfair compensation
obligation;
d) Agreements cause an unfair disadvantage to the customers.
4. Investors opening accounts at securities company must complete the
information on contract to open account.
Article 49.
Responsibilities for customers
1. When advising customers to perform securities trading, the securities
company must gather sufficient information on customers and not guarantee
securities values which it recommend the investment.
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3. Securities company must directly sign contract to open trading accounts
for customers, directly perform securities transactions to customers and be
responsible before the law for these activities.
4. Securities companies must publish the securities transaction fee before
the customers make transactions.
5. Securities company is obliged to monitor money and securities of each
customer in detail, providing information on the balance and money accrual (if
any) and the securities to the customers upon customers’ requests.
6. Securities companies must set up a specialized department responsible
for communications with customers and settlement of any customers’ questions
and complaints.
Article 50.
Management of customers’ money.
1. Securities company shall manage deposit of securities transactions
separately for each customer and customers’ money with securities company’s
money.
2. Securities company must not directly receive and pay cash for
customers’ securities trading but must perform through commercial banks.
3. Securities company must not abuse customer’s money in any form.
Transactions related to customers’ moeny are only allowed to perform in accordance
with the law.
4. Securities company must build management system separately from
customers' money in the form specified at Point a of this Clause. In addition,
securities company can build additional systems in the form specified at Point
b of this Clause for customers to choose:
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b) Securities company shall open
specialized accounts at commercial banks to manage customers' deposit for securities
transactions. The specialized account must be opened separately and clearly
from other accounts of securities companies.
This specialized account only
serve customers’ transactions, particularly:
- Customers make payment and transfer money to securities trading
accounts;
- Customers withdraw and transfer money out of securities trading
accounts;
- Customers make payment of securities trading;
- Customers make deposit for trading and payment of auctioning money to
buy securities;
- Customer make payment to execute their call option of securities;
- Other cases of customers’ payment on the customer's requirements and in
conformity with the law.
Securities company shall establish
accounting system for managing the deposit of each investor. The securities
company is obliged to determine the balance (if any) at any time of each
customer and provide detailed statement balance (if any) of each customer at
any time at the request of customer or competent state agencies.
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Securities companies are not
mandated by customers transferring money internally between the customers’
accounts.
5. Securities company must publish on its website and at branches and
transaction offices the list of commercial banks selected for the two forms of
management of customers’ securities transaction money.
6. Within three (03) working days from the date of signing the contract as
specified at Points a and b, Clause 4 of this Article, the securities company
shall make a report to the State Securities Commission together with a valid
copy of contract between securities company and commercial bank.
7. Prior to sixteen (16) o’clock of weekly Monday or the first working day
of the week, the securities company having specialized accounts must make
report to the State Securities Commission on the number and balance of customer
in the specialized account of the securities company opened at commercial banks
under the form provided in Appendix XVII issued together with this Circular.
The data reported above are closed at the end of the working day immediately
preceding the date of the report.
Article 51.
Customers’ securities management.
1. For securities registered for consolidated deposit:
a) Securities companies must separately manage customer-owned securities
with securities owned by the securities company;
b) Securities company must re-deposit the customers’ securities in the
Vietnam Depository within one (01) working day from the date of receipt of
customers’ valid dossiers of securities deposit.;
c) Securities company shall promptly and fully notify customers of the benefits
incurred in relation to customers’ securities;
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2. For securities which have not been registered considated depository,
securities company is registered and deposited customers’ securities in the
securities company under contract signed with customers and under provisions of
Article 58 and Article 59 of this Circular.
Article 52. Receiving
order and executing transaction
1. Securities company receives customers’ trading order in the following
forms:
a) Receiving order ticket directly
at the trading counter.
b) Receiving remote orders via
phone, fax, internet and other transmission lines.
2. Securities companies receives orders online after registration with the
State Securities Commission as prescribed.
3. In case of receiving orders online, via phone, fax and other
transmission lines, securities companies must comply with:
a) Law on electronic
transactions,
and guiding documents;
b) Ensuring full recording of
information at the time receiving order and keeping proof proving customers’
order
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d) Taking measures to ensure the
safety, security of transmission lines and appropriate remedies upon failure of
entry of customers’ order into transaction system due to company's fault.
4. Securities company is entitled to execute customers’ order only when
trading orders have complete and accurate information on customers, trading
day, stock code, methods, types of order, amount and price of the transaction.
The customers’ trading orders must be recorded ordinal number and time (day,
hour, minute) of order receiving at the time order receiving by the securities
company.
5. Securities company must execute customers’ orders quickly and
accurately.
6. Securities company may only receive orders to buy or sell securities of
customers when having one hundred percent (100%) of cash or securities and
taking necessary measures to ensure the solvency of the customer when orders
are made.
7. Securities company must inform the result of implementation of trading
orders to customers as soon as the orders are matched by the method agreed
between customers and securities company in the contract.
8. Where the customers open accounts at depository members who are not
trading members. The trading members and depository members must sign contract
to agree upon the responsibilities for ensuring the principle of the trading
member responsible for execution of trading order. The depository members are
responsible for checking the rate of deposit of customers’ money or securities
and ensuring payment to the customers in accordance with the law.
Section 3.
SECURITIES DEALING OPERATION
Article 53.
Securities dealing
1. Stock company must ensure to have enough money and securities to make
payment for trading orders trades for its own account.
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3. The following cases shall not be considered as securities dealing:
a) Purchase and sale of securities due to trading error correction;
b) Purchase and sale of treasury stocks.
4. Securities company must prioritize the execution of the customers’
orders before its own orders.
5. Securities company must notify its customers when it is a partner in
negotiation trading with the customers
6. In case the customers’ orders to buy or sell securities can remarkably
influence the price of that type of securities, the securities company is not
entitled to buy and sell in advance the same type of securities for itself or
disclose the information to a third party buying and selling those secuties.
7. When customers place a limited order, the secuties company is not
entitled to purchase or sell in the same direction the same type of securities
for itself at a price equal to or better than the customers’ price before the
customers’ orders are made.
Section 4.
SECURITIES UNDERWRITING OPERATIONS
Article 54.
Conditions for issuance underwriting
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1. Having been licensed to conduct securities underwriting operations
2. At the time of signing the contract of issuance underwriting, the total
value of all contracts issued in the form of valid firm commitment must meet
the following conditions:
a) Not greater than one hundred
percent (100%) of equity based on the latest quarterly financial statement;
b) Not exceeding fifteen (15)
times of the difference between current assets and liabilities based on the
latest financial statements
3. Not being put under control and special control of three (03) months
immediately preceding the time of signing the contract of underwriting.
Article 55.
Limited underwriting
1. The securities company is not entitled to underwriting in the form of
firm commitment, or is the main sponsor of the following cases:
a) Securities company independently or together with its subsidiaries or
persons concerned own from 10% or more of the chartered capital of the issuer,
or have the right to control the issuer, or the right to appoint Director
(General Director) of the issuer;
b) At least 30% of the chartered capital of securities companies and at
least 30% of the chartered capital of the issuer are hold by the same
individual or organization;
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d) Members of the Board of Directors, Director (General Director) and the
persons concerned of the securities company and concurrently a member of the
Board of Directors, Director (General Director) of the issuer;
e) Members of Board of Directors,
Director (General Director) and the persons concerned of the issuer that is a
member of the Board of Directors, Director (General Director) of the securities
company;
e) Securities company and issuer have the same legal representative.
2. Securities company receiving the securities underwriting must open a
separate account in a commercial bank to get money from the purchase of
securities of the investor.
Section 5.
SECURITIES INVESTMENT CONSULTATION OPERATION
Article 56.
Responsibility of securities company.
1. In order to provide the securities investment consultation services to
customers, the securities company shall sign contract with the customers with
the minimum contents as follows:
a) Rights, obligations and responsibilities of the parties engaged in the
contract;
b) Scope of securities investment consultation;
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d) Fee of service provision;
2. Securities company shall collect and manage customers’ information
including:
a) Financial situation;
b) Investment target;
c) Ability to take risks;
d) Experience and understanding of investment.
3. Contents of securities investment consultation must be reasonable and consistent
based on reliable information, logical analysis. Recommendation of securities
investment given must be relevant and consistent with the content of securities
analysis and securities markets. The reports on securities and market analysis
and investment recommendations must specify the data sources cited and name of
the person responsible for the contents of the report and securities investment
recommendations.
4. Company securities advicing investment to customers must ensure that
customers shall make a decision on investment on the basis of fully provided
with information including content and risks of products and services.
5. Securities companies must secure the information received from the user
of consultation services during the process of provision of consultation
services unless otherwise agreed by the customers or provided by law.
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Article 57.
Prohibited acts
Except as otherwise provided by
law, securities company providing investment consultation services is not
entitled to directly or indirectly perform the following acts:
1. Making a decision on securities on behalf of customers.
2. Making agreement with customers to share profits or losses.
3. Advertising, claiming that the content, performance, or its security
analysis methods are of higher value of other securities companies.
4. Having
acts to provide false information to lure or entice customers to
purchase and sell a certain type of securities.
5. Providing false, fraud or misleading information for customers.
6. Other acts contrary to the provisions of law.
Section 6.
SECURITIES DEPOSITORY OPERATIONS
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Securities company issued
Certificate of depository operation is provided with the following services:
1. Providing securities registration and depository services for
customers.
2. Making payment on securities transactions to customers at Stock
Exchange.
3. Providing the shareholder book management services, transfer agent at
the request of the issuer which is not a public company.
Article 59.
Rights and obligations of securities company with depository operations
1. Opening depository accounts for customers at the securities company,
managing customers’ depository accounts in accordance with regulations of the
law. Custody account clients must be separated from the securities depository
accounts of the company itself.
2. Recording accurately, completely and updating information on customers
who have opened depository accounts and securities owned by customers who have
deposited at the company.
3. Preserving, storing, collecting and processing data relating to
depository activities, securities offsetting payment of customers.
4. Developing process of registration, depository, offsetting payment,
management of shareholder book, transfer agent and internal control procedures
in order to manage and protect the interests of customers or securities owners.
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Section 7. FINANCIAL
CONSULTATION OPERATION
Article 60.
Regulation on financial consultation operations
1. Securities company is entitled to execute the financial consultation
including:
a) Consultation of restructure, merger, consolidation, reorganization and
sale of businesses;
b) Management consultation, business strategy consultation;
c) Consultation of securities offer and listing;
d) Equitization consultation, determination of business value;
đ) Other financial
consultation in accordance with the law.
2. Securities company is not entitled to provide services specified at
Point c, Article, Clause 1 of this Article for a company that it holds ten
percent (10%) or more of the chartered capital.
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Section 8.
OTHER FINANCIAL SERVICES
Article 61.
Entrusting management of securities trading account of individual investor.
1. General principle:
a) Securities company licensed to
concurrently execute securities brokerage and securities investment
consultation may be entrusted to manage securities trading accounts on the
basis of Trust contract of trading account management signed with the
individual customer;
b) Securities company not
entrusted shall decide all transactions on securities trading accounts on
behalf of individual investors. Customers must specify the particular trust
content as prescribed in Clause 2 of this Article;
c) Securities are permitted to
entrust the purchase and sale of stocks, investment fund certificates listed on
the Stock Exchange, not including securities registered trading on the trading
system of unlisted public companies (UpCom);
d) Securities company shall
appoint securities practitioners having certificate of financial analysis practice
or fund management to execute the management of entrusted trading accounts.
2. Entrustment scope includes the following contents:
a) Class of trading securities;
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c) Maximum value for each trading
order;
d) Maximum total trading value for
a trading day;
đ) Trading method and type of
trading order.
3. Securities company shall summarize information on the financial capacity,
investment period, investment objectives, acceptable level of risk, investment
restrictions, securities portfolio (if any) and other requirements of the
client before signing the contract. Where the customer does not provide enough
information or provide inaccurate information, securities company has the right
to refuse to sign the contract.
4. Trust contract:
a) Trust contract period shall not
exceed one (01) year from the time of signing the contract.
b) Trust contract shall have the
following contents:
- Information on customers;
- Information on practitioners assigned to manage customers’ accounts (if
any);
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- Rights and obligations of the parties in the contract;
- Contract management fee and award fee (if any) ;
- Method of payment and contract liquidation;
- Method of dispute settlement.
5. Where securities company fails to comply with the contract signed with
the customers causing damage to them, the securities company shall compensate
the trusted customer as agreed in writing between the two parties; in case of
profit generation, that profit shall belong to the trusted customers.
6. Rights and obligations of the entrusted securities companies:
a) Acting honestly and or customers' best interests, do not use information about its customers
to benefit for itself and cause harm to customers;
b) Requiring customers to provide
all the necessary information;;
c) Performing purchase/sale of
securities in the trust scope;
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đ) Providing customers with
statements of monthly or unusual transactions at the request of entrusted
customers;
e) Notifying the customers within
twenty-four (24) hours after the assets in the entrusted trading account of the
entrusted customers fall below twenty-five percent (25%) of the total trust
contract value;
g) Monthly report (under form in
Appendix XXII issued together with this Circular) or reports as required by the
State Securities Commission on the management entrusted trading account;
h) Providing the list of
securities practitioners eligible for customers to choose to manage their trust
accounts;
i) Establishing independent
monitoring department to supervise the management and trading of securities on
the entrusted trading account of securities practitioners to ensure that the
trading of these accounts in accordance with the agreements in the trust
contract and investment objectives of the customers;
k) All trading orders under the
trust contract must be recorded exactly by the time it is done;
l) Securities companies must
notify and must have the written consent of the customer in case of investment
in securities by the company performing underwriting during the company’s
underwriting.
Article 62.
Other financial services
1. Securities company only carry out other financial services upon
regulations and guidance of the Ministry of Finance.
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Chapter VII
REORGANIZATION
OF SECURITIES COMPANY
Section 1. CONVERSION
OF CORPORATION SECURITIES
Article 63.
Conversion forms of securities companies
1. Securities company is a limited liability company with a member
converted into a limited liability company with two members or more, and vice
versa.
2. Securities company is a limited liability company converted into joint
stock company, and vice versa.
Article 64.
Conditions for conversion of securities company.
1. The conversion of the company, the plan for company conversion must be
approved by the General Meeting of Shareholders, the Board of Members or the
Owners.
2. Securities company formed after the conversion must meet the conditions
specified in Clauses 1, 2, 3 and 4 of Article 3 of this Circular.
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4. The conversion of the company shall not affect the customers’ interests
(if any).
5. The company conversion must comply with the relevant laws.
Article 65.
Procedures for company conversion
1. Securities company implementing the company conversion must be approved
by the State Securities Commission. The dossier to request the approval for
conversion shall be made into (01) original submitted directly to the State
Securities Commission or sent by mail. Dossier includes:
a) A written request for approval to convert the company (see Appendix
XVIII issued together with this Circular);
b) Minutes of the meeting, the decision of the General Meeting of
Shareholders, the Board of Members or Owners on the company conversion;
c) Conversion plan approved by the General Meeting of Shareholders, the
Board members or the Owners of the Company;
d) Dossier to request the approval for the transfer of ten percent (10%)
or more of the contributed chartered capital (if any) specified in Clause 2,
Article 30 of this Circular;
đ) Documents proving satisfaction
of the provisions of Clause 3, Article 64 of this Circular.
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3. Securities company shall perform the conversion in accordance with the
Enterprise Law. In case of company conversion in association with individual
share offering, the offering of shares to the public, securities companies must
comply with the relevant provisions of offering.
4. After the conversion, the securities company shall carry out procedures
for the re-issuance of License of establishment and operation. Dossier to
request for the re-issuance of License shall be made in one (01) original
submitted directly to the State Securities Commission or sent by mail. Dossier
includes:
a) Written request for issuance of License of establishment and operation
(under form prescribed in Appendix I issued together with this Circular);
b) Making report on the result of the implementation of the conversion
plan, including a list of shareholders, capital contributor of the company
after the conversion (under prescribed in Appendix V issued together with this
Circular). The results of the transfer from ten percent (10%) or more of the
chartered capital (if any) (under the form prescribed in Appendix XIII issued
together with this Circular), the result of share offering (if any);
c) Written explanation about material facilities to ensure the implementation
of securities business operations (under the form prescribed in Appendix II
issued together with this Circular).
d) Tentative list of the Director (General Director) and securities
practitioners at the head office (under the form prescribed in Appendix III
issued together with this Circular) together with valid copy of Certificate of
securities practice; Written personal information of the Director (General
Director) (under the form prescribed in Appendix IV issued together with this
Circular).
đ) Confirmation of additionally
increased capital (if any) of the bank where the blockade account is opened or
of the auditing organizations approved by the State Securities Commission;
e) Draft of company Ordinance
after conversion;
g) Original of License of establishment
and operation of the converted securities company.
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6. Within thirty (30) days from the date of receipt of complete and valid
dossier as specified in Clause 4 of this Article and the results of inspection of
material facilities (if any), the State Securities Commissionre shall re-issued
the License of establishment and operation. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reasons.
7. Securities company formed after the conversion shall inherit all the
rights and obligations of the converted securities company.
8. The converted securities company must publish information as prescribed
by current regulations of law.
9. Branches and transaction offices of the securities company after the
conversion continuing to operate must make adjustments of decision on approval
for the establishment of branches and transaction offices as stipulated in
Articles 20 and 23 of this Circular. Branches and transaction offices not
continuing to operate shall make the procedure for closing branches and
transaction offices as stipulated in Articles 19 and 22 of this Circular.
Section 2.
CONSOLIDATION, MERGER OF SECURITIES COMPANY
Article 66.
Conditions for consolidation and merger
1. Securities company formed after the consolidation or merger must meet
the conditions specified in Clauses 1, 2, 3 and 4, Article 3 of this Circular.
2. Consolidation, merger, consolidation or merger plans must be approved
by the General Meeting of Shareholders, the Board of Members or the Owners.
3. Consolidation or merger does not affect the customers’ interests (if
any).
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Article 67.
Procedures for consolidation and merger
1. Securities company makes the consolidation or merger must be approved
by the State Securities Commission. Dossiers to request the approval for
consolidation or merger shall be made in one (01) original submitted directly
to the State Securities Commission or sent by mail. Dossier includes:
a) Request for approval of consolidation or merger (see Appendix XIX
issued together with this Circular);
b) Minutes of the meeting, the Decision of the General Meeting of Shareholders,
the Board of Members or the Owners of the companies involved in consolidation
or merger;
c) Principle
contract of consolidation or merger (including the minimum
content under the form prescribed in Appendix XX, issued together with this
Circular);
d) Plan for consolidation or merger was approved by the General Meeting of
Shareholders, the Board of Members or Owners of the companies involved in
consolidation or merger through, including the plan for processing of brokerage
account (if any) of the customers (including the minimum contents under form
prescribed in Appendix XXI issued with this Circular);
đ) Dossier to request approval for
the transfer from ten percent (10%) or more of the contributed chartered
capital (if any) specified in Clause 2, Article 30 of this Circular.
2. Within thirty (30) days after receipt of complete and valid dossier as
stipulated in Clause 1 of this Article, the State Securities Commission shall
make a decision on approval for consolidation or merger. In case of refusal, the
State Securities Commission and a written reply clearly stating the reasons.
3. Securities company perform the consolidaation or merger in accordance
with the provisions of the Enterprise Law.
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a) Written request for issuance of License of establishment and operation
(under form prescribed in Appendix I issued together with this Circular);
b) Report on result of consolidation or merger;
c) List of shareholders and capital contributors of the company after the
consolidation or merger; result of the transfer from ten percent (10%) or more
of the chartered capital (if any);
d) Written explanation about material facilities to ensure the
implementation of securities business operations (under the form prescribed in
Appendix II issued together with this Circular).
đ) Tentative list of the Director
(General Director) and securities practitioners at the head office (under the
form prescribed in Appendix III issued together with this Circular) together
with valid copy of Certificate of securities practice; the written personal
information of the Director (General Director) (under the form prescribed in
Appendix II issued together with this Circular);
e). Draft of company Ordinance
after the consolidation or merger;
g). The original of License of
establishment and operation of the securities company involved in consolidation
or merger;
5. The State Securities Commission shall inspect the material facilities
if the company relocates its head office after the consolidation or merger, or
to clarify issues related to the the company’s material facilities after the
conversion.
6. Within thirty (30) days from the date of receipt of complete and valid
dossier as specified in Clause 4 of this Article and the results of inspection
of material facilities (if any), the State Securities Commission shall re-issue
License of establishment and operation. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reasons.
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8. Securities company after consolidation or merger shall publish
information in accordance with current laws.
9. Branches and transaction offices of the securities company after the
consolidation or merger continuing to work shall request the approval of the
State Securities Commission for the establishment of branches and transaction
offices as stipulated in Article 18 and 21 of this Circular. Branches and
transaction offices not continuing to operate shall make the procedure for
closure of branches, transaction offices as stipulated in Articles 19 and 22 of
this Circular;
Chapter VIII
REGULATION ON REPORT,
STORAGE AND PUBLICATION OF INFORMATION
Article 68.
Regulation on report
Securities companies must submit
written reports or electronic data file to the State Securities Commission
under the terms and provisions as follows:
1. Periodic report:
a) Prior to the fifth working day (05) of the following month, the
securities company must send monthly report on the activities (under the form
prescribed in Appendix XXII of this Circular);
b) Prior to the twentieth (20th) day of the following quarter, the
securities companies must submit quarterly financial report;
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d) Annual report:
- Prior to January 20 of the subsequent year, securities company must
submit a report summing up the activities of the company (under the form
prescribed in Appendix XXIII of this Circular);
- Prior to March 31 of the
following year, securities companies must submit the State Securities
Commission the annual financial statement and reports of financial security
ratio on December 31 having been audited by an independent audit organization
approved by the State Securities Commission.
e) Financial statement of the
securities company submitted to the State Securities Commission specified at
Point b, c, d of this Clause includes: Balance sheet, report on results of
business operations, report on cash flow, notes to the financial statement in
accordance with accounting laws. Notes to the financial statement must be
presented in full all of the contents in accordance with the law and shall be
made in accordance with the standards and current accounting regime. Where in
the notes to the financial statements there is a reference to the appendix,
this appendix must be published together with the financial statement. Notes to
the financial statements must be presented in detail the contents of
transactions with related parties in accordance with the Vietnamese Accounting Standards.
Notes to the financial statements must be reported to the department in
accordance with the Vietnamese Accounting Standards. Where the securities
company is the parent company of another organization, the annual financial
statements including the financial statements of the parent company and
consolidated financial statement in accordance with accounting laws.
f) Where the financial statement
with exceptional audit opinion not providing details of items and reasons for
the exception, the securities companies shall have a written explanation
certified by the audit and submitted to the State securities Commission no
later than thirty (30) days from the date of the report as prescribed at Point
c, and d of this Clause.
2. Unusual report:
a) Within two (02) working days after stock company has newly signed or
terminated the labor contract with the securities practitioners, the securities
company must make written report to the State Securities Commission;
b) Within three (03) days after the occurrence of the following events,
the securities company must report to the State Securities Commission in
writing:
Loan and investment exceeds the
limit specified in Article 42 and Article 44 of this Circular;
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3. Report as required:
Where necessary, the State
Securities Commission has the right to require the securities company to make
written report, specifying the content and time limit of the report.
Article 69. Regulation
on storage of dossiers and documents
1. Securities company must keep dossiers and documents in accordance with
Article 12 of the Enterprise Law.
2. Securities company must keep all customers’ dossiers and documents and
related materials accurately reflecting customers’ transactions and operations
of the company.
3. The retention period of documents under the provisions of Clause 2 of this
Article is at least ten (10) years.
Article 70.
Regulation on information publication
Company securities shall publish
information under the provisions of the law on securities, securities markets and other relevant laws.
Chapter IX
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Article 71.
Implementation organization
1. This Circular takes effect from January 15, 2013 and replaces Decision
No. 27/2007/QD-BTC dated April 24, 2007 of the Minister of Finance on
promulgating the Regulation on organization and operation of securities company
and Decision No. 126/2008/QD-BTC dated December 26 2008 of the Minister of
Finance on amending and supplementing a number of articles of the
"Regulation on organization and operation of securities company"
issued together with Decision No. 27/2007/QD-BTC dated April 24, 2007 of the
Minister of Finance.
2. Within one (01) year from the effective date of this Circular, the
securities company shall amend the Ordinance under the sample Ordinance as
prescribed in Appendix XI, issued together with this Circular; establish and
build risk management systems, internal audit, internal control as prescribed
in Article 35, Article 36, Article 37 of this Circular; manage customers' money
as stipulated in Article 50 of this Circular.
3. Since the effective date of this Circular, the securities company has
the debt rate and the investment rate exceeding provisions specified in Clause
1, Article 42 and Article 44 of this Circular is not entitled to generate or
renew loans and liabilities payable, and not increase the investment rate in
any form.
4. Public securities company and listed securities companies must comply
with the provisions of this Circular and the current provisions of law
applicable to public company and listed company. In case of difference between
this Circular with the regulations applicable to public company and listed
company, the public securities company and listed securities company must apply
the provisions of this Circular .
5. Any
problem arising in the course of implementation should be promptly reported to
the Ministry of Finance for study, guidance and settlement.
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APPENDIX XI
SAMPLE CHARTER OF A SECURITIES
COMPANY
(Promulgated together with the Circular
No. dated November 30, 2012 of the
Ministry of Finance)
MINISTRY
OF FINANCE
--------
SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
---------------
MODEL CHARTER
APPLICABLE
TO SECURITIES COMPANIES
(The
charters issued by securities companies must be conformable with this sample
charter, and are not limited within the contents of this model charter)
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Legal basis
Chapter I. General provisions
Article 1. Interpretation of
terms
Article 2. Name, legal form,
location, organizational structure, and operating term of the company
Article 3. Legal representative
Article 4. Scope of business
Article 5. Charter capital
Article 6. Targets
Article 7. Principles
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Article 9. Obligations of the
company
Article 10. Prohibitions and
restrictions
Chapter II. Shares/capital
contributions and owner/shareholders/partners
Section 1. Shares/capital
contributions
Article 11. Types of shares (for
joint-stock companies)
Article 12. Transfer of capital
contribution/shares
Article 13. Repurchase of
capital contribution/shares
Article 14. Methods of increasing
and decreasing charter capital
Section 2.
Owner/founders/founding shareholders; rights and obligations of
owner/members/shareholders
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Article 16. Rights of
owner/members/shareholders
Article 17. Obligations of
owner/members/shareholders
Article 18. Register of
members/registers of shareholders
Article 19. Share certificates
(for joint-stock companies)
Chapter III. Company
administration
Section 1. Administration of
a joint-stock company
Article 20. Administration
apparatus of the company
I. General meeting of
shareholders
Article 12. Entitlements of the
General meeting of shareholders
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Article 23. Convening a General
meeting of shareholders
Article 24. Agenda and contents
of a General meeting of shareholders
Article 25. Conditions for
convening a General meeting of shareholders
Article 26. Formalities of a
General meeting of shareholders
Article 27. Cumulative voting
Article 28. Ratifying decisions
of the General meeting of shareholders
Article 29. Effect of decisions
of the General meeting of shareholders
Article 30. Minutes of the
General meeting of shareholders
II. The Executive Board
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Article 32. Composition, term of
office, and number of Executive Board members
Article 33. Standards and
requirements of Executive Board members
Article 34. Meetings of the
Executive Board and minutes of meeting
Article 35. Dismissal and
appointment of Executive Board members
Article 36. Independent,
non-executive members of the Executive Board
Article 37. The President of the
Executive Board
Article 38. Internal audit and
risk management unit of the Executive Board
III. The Board of Directors
Article 39. Composition,
obligations and benefits of the Board of Directors
...
...
...
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Article 41. Dismissal and
appointment of directors
Article 42. Internal control and
risk management unit affiliated to the Board of Directors
IV. Control Board
Article 43. Tasks and
entitlements of the Control Board
Article 44. Number of members
and term of the Control Board
Article 45. Operation and
meetings of the Control Board
Article 46. Standards and
requirements of the Control Board members
Article 47. Dismissal of members
of the Control Board
Section 2. Administration of
the limited liability company
...
...
...
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I. The Member assembly
Article 49. Entitlements of the
Board of members
Article 50. Convening meetings
of the Board of members
Article 51. Authorized
representatives (for multi-member limited liability securities companies)
Article 52. Conditions and
formalities of a meeting of the Board of members
Article 53. Ratifying decisions
of the Board of members
Article 54. Minutes of meetings
of the Board of members
Article 55. President of the
Board of members
Article 56. Internal audit and
risk management unit of the Board of members
...
...
...
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Article 57. Composition,
obligations and entitlements of the Board of Directors
Article 58. Standards and
conditions for being a director
Article 59. Dismissal and
appointment of directors
Article 60. Internal control and
risk management unit affiliated to the Board of Directors
III. Control Board
Article 61. Tasks and
entitlements of the Control Board
Article 62. Number of members
and term the Control Board
Article 63. Operation and
meetings of the Control Board
Article 64. Standards and
requirements of the Control Board members
...
...
...
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Chapter IV. Maintenance of
relationship with partners
Article 66. Possible disputes
Article 67. Settlement of
disputes
Article 68. Transactions subject
to approval
Article 69. Voting for execution
of contracts with relevant parties
Article 70. Reporting and
announcement of information
Chapter V. Financial and
accounting management
Article 71. Fiscal year
Article 72. Accounting system
...
...
...
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Article 74. Profit distribution
principles
Article 75. Settlement of loss
Article 76. Establishment of
compulsory funds
Chapter VI. Extension of
operating term, restructuring, dissolution and bankruptcy
Article 77. Extension of
operating term
Article 78. Restructuring
Article 79. Dissolution
Article 80. Bankruptcy
Chapter VII. Formalities for
amending the charter
...
...
...
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Chapter VIII. Effect of the
Charter
Article 82. Effective date
LEGAL BASIS
- The Law on Enterprises No.
60/2005/QH11 ratified by the National Assembly of Socialist Republic of Vietnam
on November 29, 2005 and the documents guiding the implementation of the Law on
Enterprises;
- The Law on Securities No.
70/2006/QH11 ratified by the National Assembly of Socialist Republic of Vietnam
on June 29, 2006, the Law on the amendments to the Law on Securities ratified
by the National Assembly on November 24, 2010 and the documents guiding the
implementation of the Law on Securities.
Chapter I
GENERAL PROVISIONS
Article 1.
Interpretation of terms
...
...
...
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a) “company" means the
securities joint-stock company or securities limited liability company (full
name of the company in Vietnamese language);
b) “charter capital” means the
total value of capital contributed by the owner/total value of capital
contributed by members/total value of issued shares paid by shareholders, and
is written in the Charter;
c) “the Law on Securities” means
the Law on ratified by the National Assembly of Socialist Republic of Vietnam
on June 29, 2006 and the Law on the amendments to the Law on Securities
ratified by the National Assembly on November 24, 2010;
d) “the Law on Enterprises” means
the Law on Enterprises ratified by the National Assembly of Socialist Republic
of Vietnam on November 29, 2005;
e) “Article” means an article of
this charter;
f) “establishment date” means
the day on which the company is issued with the operating license;
g) “law” means all of the
legislative documents mentioned in Article 1 of the Law on Promulgation of
legislative documents ratified by the National Assembly of Socialist Republic
of Vietnam on June 03, 2008;
h) “company administrators” mean
members of the Board of members/the President of the Board of members,
Executive Board members, members of the Board of Directors, and ... (other
positions decided by the company);
i) “relevant persons” mean
individuals or organizations that are related to one another as prescribed by
the Law on Securities and the Law on Enterprises;
...
...
...
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k) “Vietnam” means Socialist
Republic of Vietnam;
l) “SSC” stands for State
Securities Commission.
2. in this Charter, the
reference to any terms or document shall include their amendments or
replacements.
3. The titles (of Chapters and
Articles of the Charter) shall be included to facilitate the reading and avoid
influencing the meaning of the Charter.
4. Meanings of the words and
terms defined in the Law on Enterprises and the Law on Securities remain
unchanged in this Chapter if such meanings are not inconsistent with the
subject or the context.
Article 2.
Name, legal form, location, organizational structure, and operating term of the
company
1. Name of the company:
a) Full name in Vietnamese
language:
b) English name:
...
...
...
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d) Abbreviated name:
2. Legal form of the company:
Single-member limited liability
company/multi-member limited liability company/joint-stock company is issued
with the license for establishment in accordance with the Law on Securities,
has a legal status, and conformable with current Vietnam’s law.
3. Location:
a) Address of the head office:
b) Phone number: Fax:
c) Website (if any):
4. Organizational structure:
a) The company may open, close
branches, transaction offices, and representative offices to pursuit its
targets in accordance with decisions of the owner/the Executive Board/the Board
of members after they are approved by SSC;
...
...
...
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c) The company only trades in
securities and provides securities services at its head offices, the branches
and transaction offices permitted by SSC.
d) The name of a branch,
transaction office, or representative office must bear the company’s name, the
word “branch”, “transaction office”, or “representative office” and a proper
name for differentiation.
5. Operating term:
The company’s operation
commences on its establishment date and lasts for ... years/indefinitely,
unless it is shut down ahead of schedule or the operating term is extended as prescribed
in this Charter.
Article 3.
Legal representative
1. The President of the Board of
members/the President of the Executive Board or the Director (General Director)
is the legal representative of the company (the company may choose only one of
these positions as the legal representative).
2. Authorization of the legal
representative:
a) The legal representative of
the company prescribed in this Article must reside in Vietnam. If he is not
present in Vietnam for more than 30 days, he must authorizes another person in
writing to exercise the rights and perform the tasks of a representative in
accordance with the company’s charter;
b) If the legal representative
of the company fails to return to Vietnam after the authorization duration without
authorizing another person, the authorized representative (mentioned in Point a
of this Clause) shall keep exercising the rights and performing the tasks of a
representative as authorized until the representative returns to the company or
the owner/the Board of members/the Executive Board decides to designate another
person as the legal representative;
...
...
...
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3. Recommendation: Where the
Director (General Director) is the company’s legal representative: if the
Director (General Director) detained, makes a getaway, is incapable of civil
acts, has the rights to practice revoked by the Court, or has not been
designated as the Director (General Director) after being dismissed, the
President of the Board of members/the President of the Executive Board is
naturally the company’s legal representative until the owner/the Board of
members/the Executive Board designates another person as such position (or vice
versa if the President of the Board of members/the President of the Executive
Board is the company’s legal representative).
Article 4.
Operating scope
1. Operations of the company
(one, some or all of the operations below):
a) Securities brokerage;
b) Proprietary trading;
c) Underwriting securities issuance;
d) Advising on investment in
securities.
2. Apart from the operations
mentioned in Clause 1 of this Article, the company may provide securities
depository services, financial advices, manage securities trading accounts of
investors, and provide other financial services as prescribed by the Ministry
of Finance.
3. The company may add or
withdraw some operations mentioned in Clause 1 of this Article after obtaining
the approval from SSC.
...
...
...
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On the day this Charter is
ratified, the company’s charter capital is .... VND (in numbers: ... ).
Article 6.
Targets
1. The company’s targets:
...............
2. If any of the targets above
is subject to the approval of competent state agencies, the company shall only
pursuit such target after it is approved.
Article 7.
Operating principles
1. Comply with legislation on
securities, securities market and relevant laws.
2. Conduct the business fairly
and honestly.
3. Establish procedures for
internal audit and risk management, issue code of practice conformable with the
company’s operations.
4. Ensure the adequate human
resources, capital and infrastructure necessary for securities trading; obey
the law.
...
...
...
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6. Assign securities
practitioners appropriate for the operations. The practitioners engaged in
proprietary trading must not engage in securities brokerage.
7. The forecast of prices of
recommended transactions related to a specific type of securities on the media
must specify the basis for analysis and source of information.
8. Other principles decided by
the company that are conformable with current law.
Article 8.
Rights of the company
1. All the rights recognized by
the Law on Enterprises, provided they do not contravene with the Law on
Securities.
2. Provide securities services
and financial services within the law.
3. Collect fees and charges in
accordance with regulations of the Ministry of Finance.
4. Favor Vietnamese workers,
ensure rights and interests of workers as prescribed by the Labor Code, and respect
the right to establish the Union as prescribed by law.
5. Other rights decided by the
company that are conformable with current law.
...
...
...
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1. General principles:
a) Fulfill all obligations
prescribed by the Law on Enterprises;
b) Establish an internal control
and risk management system, prevent conflict of interest within the company,
between the company and relevant persons;
c) Adhere to with the
administration principles prescribed by law and the company’s charter;
d) Adhere to the financial
safety principles prescribed by the Ministry of Finance;
e) Buy Professional liability
insurance for securities trading at the company or establish a investor
protection fund to provide compensation for investors that suffer from damage
caused by technical errors or employees’ errors;
f) Retain all documents and
accounts that specifically and accurately reflect the transactions between the
clients and the company;
g) Sell securities or allow
clients to sell securities while they are not holding securities, and allow
clients to borrow securities for sale in accordance with regulations of the
Ministry of Finance;
h) Adhere to the regulations of
the Ministry of Finance on securities trading;
...
...
...
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j) Provide information, make
reports and retain them in accordance with the Law on Enterprises, the Law on
Securities and their guiding documents;
k) Make contributions to the
payment support fund according to the Regulation on registration, depository,
offsetting, and payment of securities;
l) Other principles decided by
the company that are conformable with current law.
2. Obligations to
shareholders/members:
a) Separate the obligations of
General meeting of shareholders/the Board of members, and the Executive Board,
the President of the Executive Board, the President of the Board of members,
and the Control Board;
b) Establish a system for
communication with shareholders/members to ensure adequate information
provision and fair treatment among shareholders/members, ensure the lawful
rights and interests of shareholders/members;
c) The acts below are
prohibited:
- Making promises of incomes or
profits for shareholders/members (except for the shareholders that hold
preference shares offering fixed dividends);
- Illegally holding benefits and
incomes from shares/contributions of shareholders/members;
...
...
...
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- Generating incomes for
shareholders/members buy improperly repurchasing their shares/contributions;
- Infringing other rights of
shareholders/members such as: ownership, call option, put option, the right to
fair transaction, the right to information, other the lawful rights and
interests;
d) Other obligations decided by
the company that are conformable with current law.
3. Obligations to clients:
a) Fulfill the commitment to
clients; not to infringe the property, the lawful rights and interests of
clients;
b) Separate money and securities
or every client, separate money and securities of clients and the company’s.
All transactions in cash must be made via bank transfer. Do not abuse the
assets entrusted to the company by clients, the payment for transaction and
securities of clients that are kept at the company;
c) Sign written contracts when
providing services; provide sufficient and accurate information for clients
when providing services;
d) Only provide suitable advices
based on the collected information about the clients: collect info about the
financial condition, investment targets, risk acceptability, profit expectation
of clients, and update such information as prescribed by law. Ensure the
provision of appropriate recommendations and advises for each particular
client;
e) Take responsibility for the
reliability of the information provided for clients. Ensure that clients make
decisions on investment based on sufficient information, including the risks of
provided products or services. False information and dishonesty are prohibited;
...
...
...
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g) Favor clients’ orders over
the company’s orders;
h) Establish a department in
charge of communicating with clients and resolving clients’ complaints and
questions;
i) Fulfill obligations to
clients;
j) Maintain confidentiality of
clients’ information:
- The company shall maintain the
confidentiality of the information about the ownership of securities and money
of clients, refuse to investigate, block, keep, transfer assets of clients
without their consent.
- This regulation does not apply
to:
+ Auditors that audit the
company’s financial statements;
+ Provision of information at
the request of competent authorities.
k) Other obligations decided by
the company that are conformable with current law.
...
...
...
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1. Regulations applicable to the
company:
a) Do not give opinions or
promises of income or profit on clients’ investment, or assurance of no loss,
except for investment in securities that generate fixed incomes;
b) Do not discuss or offer
specific interest rates or distribute profit/loss with clients to entice
clients into transactions;
c) Do not directly or indirectly
sign contracts, receive orders, execute orders, or make payments outside the
locations approved by SSC;
d) Do not take orders from or
make payments with other people than the account holders without written
authorization made by clients;
e) Do not use clients’ names or
accounts to register or trade in securities;
f) Do not appropriate
securities, money, or impound securities of clients deposited under the
company’s name;
g) Do not reveal information
about clients unless the revelation is accepted by clients or requested by
competent authorities;
h) Do not cause clients and
investors to misjudge securities prices;
...
...
...
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j) Other prohibitions and
restrictions imposed by the company in conformity with current law.
2. Regulations applied to
securities practitioners:
a) Do not simultaneously work
for another organization in proprietorial relation to the company;
b) Do not simultaneously work
for another securities company or asset management company;
c) Do not hold the position of
Director of a organization that offer securities to the public or a listed
company;
d) Only open the securities
trading account at the company. This regulation does not apply if the company
is not a member of the Stock Exchange;
e) When making transactions with
clients’ accounts, the securities practitioner is the representative of the company.
Do not use cash and securities in clients' accounts without authorization of
the company under the clients’ entrustment in writing;
f) Other prohibitions and
restrictions imposed by the company in conformity with current law.
3. Regulations applicable to
Executive Board members/the Board of members, the chief of the Control Board,
members of the Executive Board:
...
...
...
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b) The chief of the Control
Board must not concurrently be a member of the Control Board or manager or
another securities company;
c) The Director, Deputy Director
must not concurrently work for another securities company, asset management
company, or company. The Director must not concurrently be a member of the
Executive Board or the Board of members of another securities company;
d) Other prohibitions imposed by
the company in conformity with current law.
Chapter
II
SHARES/CAPITAL
CONTRIBUTIONS; SHAREHOLDERS/MEMBERS/OWNER
Section 1.
SHARES/CAPITAL CONTRIBUTIONS
Article
11. Types of shares (for joint-stock companies)
1. The charter capital of the
company is divided into ... shares. the face value of a share is ... VND.
2. Types of shares:
...
...
...
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b) Voting shares: ... shares;
c) Shares having preference in
dividends: ... shares;
d) Redeemable preferred shares:
... shares;
3. Common shares shall not be
converted into preferred shares. Preferred shares may be converted into common
shares under decisions of the General meeting of shareholders. The conversion
method and ratio shall be ratified by the General meeting of shareholders
within the law.
4. Characteristics of various types
of shares:
a) Common shares: each common
share has 01 vote. Holders of common shares are common shareholders. Common
shareholders are entitled to participate to the processing of making decisions
of the company by voting at the General meeting of shareholders;
b) Voting shares: each voting
share has ... votes. Only the organizations authorized by the Government and
founding shareholders may hold voting shares. Holders of voting shares must not
transfer them to other people The preferred right to vote of founding
shareholders only last for 03 years from the establishment date. After this
period, voting shares of founding shareholders shall be converted into common
shares;
c) Holders of shares having
preference in dividends shall receive ... % more dividends than holders of
common shares, or receive fixed annual dividends. Annual dividends include
fixed dividends and bonus dividends. Fix dividends do not depend on the
performance of the company. The level of fixed dividends and calculation method
are written on the preferred shares having preference in dividends;
d) Redeemable preferred shares
shall be redeemed at any time at the request of the holders or under the
conditions written on the shares. The purchase prices shall be decided by the
General meeting of shareholders, provided they are not higher than market
prices or lower than ... % of the book value in the latest quarterly report.
...
...
...
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1. For single-member limited
liability companies:
The company may transfer part or
the whole charter capital after 03 years from the establishment date.
2. For multi-member limited
liability companies:
a) Capital contributions/shares
of the company are transferable, except for the cases in which the transfer is restricted
according to the Law on Enterprises, the Law on Securities, and this Charter;
b) Founders/founding
shareholders must not transfer their shares for 03 years from the establishment
date, unless they transfer to other founders/founding shareholders in the
company and this transfer ensures the necessary holding ratio of
founders/founding shareholders according to current law. After this period, the
restrictions on capital contributions of founders or common shares of founding
shareholders shall be removed. Only the capital contributions/shares of
founders/founding shareholders that are purchased when the company is
established is restricted from transfer.
3. The transfer of capital
contributions/shares to become a contributor/shareholder that hold 10% of the
company’s charter capital or more are subject to approval by SSC, unless the
shares are listed or registered at Stock Exchanges (applicable to joint-stock
companies) and completely transferred under a decision of the court.
Article
13. Repurchase of shares/capital contributions
1. The company may only
repurchase capital contributions/shares when all conditions are satisfied and
the repurchase ratio is conformable with law.
2. Cases of repurchase of
shares/capital contributions:
...
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- Any member/shareholder may
request the company to repurchase their capital contributions/shares if that
member/shareholder votes against a decision of the Board of members/General
meeting of shareholders on the restructuring of the company or changes in
rights and obligations of members/shareholders in the company’s charter. The
request for repurchase of capital contributions/shares must be made in writing
and sent to the company within ... working days from the day on which the Board
of members/General meeting of shareholders ratifies the aforesaid decision.
- For limited liability
companies: if both parties fail to reach an agreement on the price when a
member makes a request for the repurchase of the capital contribution, the
company shall repurchase the capital contribution at the market price (or under
other rules established by the company) within 15 days from the day on which
the request is received. The payment shall only be made if the company is still
capable of settling other debts and financial obligations after paying for the
capital contribution.
If the company does not
repurchase the contribution or fails to pay for it, or fails to reach an
agreement on the repurchase price according to the company’s charter, the
member that requests the company to repurchase his contribution is entitled to
transfer his contribution to another person. In this case, the transfer might
not apply Article 44 of the Law on Enterprises.
b) Repurchase under a company’s
decision (applicable to joint-stock companies)
The company may repurchase
issued shares (including redeemable preferred shares) as treasury stocks. The
ratio, method, and procedure for purchasing treasury stocks shall comply with
legislation on securities and the securities market.
Article
14. Methods for increasing, reducing charter capital
1. After the official
commencement, the company may increase or decrease its charter capital under
the decision of the owner/the Board of members/General meeting of shareholders
if the regulations of current law are complied with.
2. Method for increasing the
charter capital:
1. For limited liability
companies:
...
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- Receive capital contributions
of the new members.
2. For joint-stock companies:
- Issue shares to raise capital
in accordance with law;
- Convert convertible bonds into
shares;
- Issue shares to pay dividends,
issue bonus shares.
3. The reduction of charter
capital is decided by the Board of members/General meeting of shareholders but
the conditions on legal capital must be satisfied after the reduction according
to current regulations.
Section 2.
OWNER/FOUNDERS/FOUNDING SHAREHOLDERS; RIGHTS AND OBLIGATIONS OF
OWNER/MEMBERS/SHAREHOLDERS
Article
15. Information about owner/founders/founding shareholders
1. Owner of the company (for
single-member limited liability companies):
...
...
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b) Nationality:
c) License for
establishment/Certificate of Business registration:
d) Head office address:
e) Basis characteristics:
2. Founders/founding
shareholders (for multi-member limited liability companies and joint-stock
companies):
a) Founders/founding
shareholders are members/shareholders that contribute capital or purchase
shares, participate in the establishment, ratify and sign on the first charter
of the company.
b) Information about
founders/founding shareholders:
- Name:
- Residence:
...
...
...
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- Number of the License for
establishment/Certificate of Business registration (for legal entity) or ID
number (for natural person): ... Date of issue: ... Issuer: ...
- Level of contribution and
ratio of contribution of each founder (for multi-member limited liability
companies); Quantity of shares, nominal value of shares, holding, types of
shares, total quantity of transferable shares of each founding shareholder (for
joint-stock companies).
c) Founders/founding
shareholders must hold an amount of shares/capital contribution that make up at
least ... % of charter capital. Founders/founding shareholders being banks,
insurers, or foreign organizations must maintain a holding of ... % of charter
capital for 03 years from the establishment date.
Article
16. Rights of the owner/members/shareholders
1. The owner (of the single-member
limited liability company) is entitled to:
a) Decide the contents of the
company’s charter, amend the company’s charter;
b) Decide the development
strategy and annual business plan of the company;
c) Appoint and dismiss the
managers of the company;
d) Decide the investments ≥ 50%
of the total value of assets written in the latest financial statement (or a
smaller ratio decided by the company);
...
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f) Approve the loan contracts
and other contracts valued at ≥ 50% of the total value of assets written in the
latest financial statement (or a smaller ratio decided by the company);
g) Sell the assets valued at ≥
50% of the total value of assets written in the latest financial statement (or
a smaller ratio decided by the company);
h) Decide the increase of the
company’s charter capital; transfer part or the entire charter capital of the
company to other organizations and individuals;
i) Decide the establishment of
subsidiary companies and capital contributions to other companies;
j) Supervise and assess the
company’s operation;
k) Decide the use of profit
after fulfilling the tax obligations and other financial obligations of the
company;
l) Decide the restructuring,
dissolution, and bankruptcy of the company;
m) Withdraw all values of the
company after the process of dissolution or bankruptcy is finished;
n) Other rights established by
the company in conformity with current law.
...
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a) Attend meetings of the Board
of members, discuss the resolutions and votes for the issues within the
competence of the Board of members. If a member being a natural person is
detained, imprisoned or has his rights to practice revoked by the Court due to
smuggling, making counterfeits, running illegal business, tax evasion,
cheating, and other offences defined by law, that member may authorize another
person to participate in the Board of members.
b) Has a proportional number of votes
to the capital contribution;
c) Inspect, examine, look up,
copy the member register and logbook; monitor the transactions, accounting
books, annual financial statements, minutes of meetings of the Board of
members, and other documents issued by the company;
d) Receive profit distribution
in proportion to the capital contribution after tax is sufficiently paid and
other financial obligations are fulfilled as prescribed by law;
e) Receive distribution of
residual asset value in proportion with the capital contribution when the
company is dissolved or bankrupt;
f) Be favored when making
additional capital contribution when the company’s charter capital is
increased; transfer part or the whole capital contribution as prescribed by
law;
g) Dispose of their capital
contribution by transferring, leaving as inheritance, or by other means as
prescribed by law;
h) Members or groups of members
that possess over 25% of charter capital (or a smaller ratio decided by the
company) are entitled to convent meetings of the Board of members to resolve
the issues within the competence; request the Control Board to examine every
issues related to the management and administration of the company;
i) If a member of the company
owns over 75% of the charter capital (not any smaller ratio), the assembly of
minority members naturally has the right mentioned in Point h of this Clause;
...
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k) Other rights established by
the company in conformity with current law.
3. Rights of shareholders (of
the joint-stock company)
a) Rights of common shareholders
(the persons holding common shares). Common shareholders have the following
rights:
(i) The right to vote:
- Shareholders may participate
to the process of making decisions of the company by exercising their rights to
vote at the General meeting of shareholders.
- The right to vote may be
exercised directly or by an authorized representative. The authorized
representative may act in the name of the shareholder when making decisions at
the General meeting of shareholders. The company must not prevent shareholders
from attending the General meeting of shareholders, and must enable them to
delegate the rights to attend the General meeting of shareholders at request.
Every individual may be the representative as long as he is legitimately
authorized and not restricted by law. The authorization must be made in writing
under the form of the company. No notarization is required.
- Recommendation: the company
may apply information technology to voting, including absent voting through a
secured electronic system, by the Internet or by phone to enable shareholders
to attend the General meeting of shareholders.
- Holders of common shares do
not have the right to vote in the cases below:
+ The payment for shares is not
sufficient;
...
...
...
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+ If the common shares are held
by a shareholder related to the owning company, the shareholder shall not have
the right to vote via the transactions between the company and relevant parties
to which the shareholder is a beneficiary.
+ Recommendation: the shares
earned by violating the regulations on share purchase in controlling
transactions or violating the regulations on compulsory public purchase;
+ Recommendation: the shares
directly or indirectly held by subsidiary companies;
+ Recommendation: When the
General meeting of shareholders decides the issues such as removing or reducing
the obligations of shareholders to the company; brings or drops a lawsuit
against shareholders: irrelevant shareholders do not have the right to vote for
such issues.
- Recommendation: any change in
the right to vote is subject to approval by the holders of the shares that are
negatively affected by such change.
(ii) The right to request for
cancellation of decisions made by the General meeting of shareholders:
- If a resolution of the General
meeting of shareholders is against the law or infringe the basic benefits of
shareholders, shareholders are entitled to request the company not to implement
such resolutions in accordance with the procedure prescribed by law.
- Within 90 days from the day on
which the minutes of meeting of the General meeting of shareholders or the
record on voting result is received, shareholders are entitled to request the
court or the arbitrator to consider canceling the decision made by the General
meeting of shareholders in the following cases:
+ The procedure for convening
the General meeting of shareholders is not conformable with law and the
company’s charter;
...
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(iii) The right to receive the
information about the company, the right to look up the list of shareholders;
the right to request the Control Board to examine the issues related to
management and administration of the company:
- All shareholders of the
company are entitled to examine, look up and copy the information in the list
of votable shareholders, request the rectification of incorrect information;
examine and copy the company’s charter, the minutes of meetings and resolutions
of the General meeting of shareholders.
- Only the group of shareholders
that hold at least 10% of common shares (or a smaller ratio decided by the
company) may examine and copy the minutes of meetings and resolutions of the
Board of Directors, financial statements, the reports made by the Control
Board, and request the Control Board to examine the issues related to the
management and administration of the company where necessary.
- If the shares of the company
are listed at Stock Exchange, shareholders are entitled to the periodic and
irregular notifications of the company’s operation in accordance with the
regulations applicable to listed companies.
- Recommendation: shareholders
must comply with internal regulations of the company on provision of information
and documents as follows: the company shall provide documents for the
shareholder to check at the office within ... working days from the receipt of
the shareholder’s request. The shareholder shall incur the photocopy cost.
(iv) The right to transfer
shares:
Except for the cases of in which
share transfer is restricted according to the Law on Enterprises, the Law on
Securities, the company’s charter or decisions made by the General meeting of
shareholders, common shareholders are entitled to transfer their shares at any
time and at any price without the consent of the superior authority, the
company, or other shareholders.
(v) The right to be favored when
buying shares:
- Shareholders shall be favored
when buying offered shares of converted securities before the company offer
them to a third party. The right to be favored when buying securities in
proportion to the amount of common shares they hold, unless otherwise decided
by the General meeting of shareholders.
...
...
...
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(vi) The right to request the
company to repurchase shares:
- Shareholders are entitled to
request the company to repurchase the all or part of their shares if they vote
against or refuse to vote for the decision of the General meeting of
shareholders on changes in the rights and obligations of shareholders
prescribed in the company’s charter or restructuring of the company.
- The request for repurchase of
shares must be made in writing, specifying the shareholder’s name, address,
amount of each type of shares being held, intended sale prices, and reasons for
request. This request shall be sent to the company within 10 working days from
the day on which the General meeting of shareholders ratifies the aforesaid
decision.
- The Board of Directors shall
decide the repurchase price in accordance with the Law on Enterprises. If an
agreement on the price is not reached, the shareholder may sell his shares to another
person, or both parties may request a professional valuator to give a price.
The company shall introduce at least 03 professional valuators for the
shareholder to select. The decision made by the valuator is final.
- The deadline for repurchase is
specified in the Law on Enterprises.
(vii) The right to receive
assets when liquidating the company:
- If the company is dissolved or
bankrupt, the shareholder is entitled to receive part of the remaining assets
in proportion to their capital contribution to the company after the company
has repaid the debts.
- The order for repaying debts
and distributing assets to shareholders shall comply with law.
(viii) The right to file
lawsuits in the name of the company:
...
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- The shareholder or group of
shareholder that hold at least 1% of the common shares for at least 06
consecutive months are entitled to request the Control Board to file civil
lawsuits against any Executive Board member or the Director in the following
cases:
+ The Executive Board member or
the Director fails to exercise the rights and perform the tasks they are given;
fails to adequately implement decisions of the Executive Board; exercises the
rights and performs the tasks given against the law, the company’s charter or
resolutions of the General meeting of shareholders;
+ The Executive Board member or
the Director takes advantage of the information, secrets, or business
opportunities of the company, their positions and the company’s assets for
self-seeking or to serve other organizations and individuals;
Other cases defined by the
company in conformity with current law.
- If the Control Board fails to
file the lawsuit on request, the shareholder or group of shareholders may
directly file the lawsuit against the Executive Board member or the Director.
The procedure for filing lawsuits shall comply with legislation on civil
proceedings.
(ix) The right to receive
dividends:
The level of dividends and
method of paying dividends to shareholders shall be decided by the General
meeting of shareholders, but dividends must not exceed the level recommended by
the Executive Board.
(x) The right to convene the
General meeting of shareholders:
The shareholder or group of
shareholder that hold at least 5% of the common shares for at least 06
consecutive months (or another ratio and period decided by the company) are
entitled to convene the General meeting of shareholders in the following cases:
...
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- The Executive Board has served
for more than 06 months but a new the Executive Board is not elected.
- Other cases defined by the
company in conformity with current law.
(xi) The right to nominate
people for the Board of Directors and the Control Board:
A shareholder or group of
shareholder is entitled to nominate people for the Board of Directors and the
Control Board as prescribed in Article 27 of this charter.
(xii) Other rights established
by the company in conformity with current law.
b) Rights of voting
shareholders:
- Vote for the issues within the
competence of the General meeting of shareholders (the number of votes is
specified in Point b Clause 4 Article 11 of this charter.
- Other rights similar to those
of common shareholders, except for the right to transfer voting shares to other
people.
c) Rights of holders of shares
with preference in dividends:
...
...
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- If the company is dissolved or
bankrupt, the shareholder is entitled to receive part of the remaining assets
in proportion to their share contribution to the company after the company has
settled all debts and redeemable preferred shares.
- Other rights similar to those
of common shareholders, except for the right to vote, the right to attend the
General meeting of shareholders, and the right to nominate people for the
Executive Board and the Control Board.
d) Rights of holders of
redeemable preferred shares:
- Receive refund of contributed
capital as prescribed in Point d Clause 4 Article 11 of this charter.
- If the company is dissolved or
bankrupt, the shareholder is entitled to receive part of the remaining assets
in proportion to their share contribution to the company after the company has
settled all debts.
- Other rights similar to those
of common shareholders, except for the right to vote, the right to attend the
General meeting of shareholders, and the right to nominate people for the
Executive Board and the Control Board.
Article
17. Obligations of the owner/members/shareholders
1. The owner (of the
single-member limited liability company) is obliged to:
a) Contribute capital
sufficiently and punctually in accordance with the commitment;
...
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c) Determine and separate assets
of the owner and assets of the company;
d) Comply with legislation on
contracts and transactions when buying, selling, taking loans, giving loans,
leasing, renting, and making other transactions between the owner and the
company;
e) Fulfill other obligations
prescribed by law;
f) Other obligations imposed by
the company in conformity with current law.
2. Members (of the multi-member
limited liability company) are obliged to:
a) Contribute capital
sufficiently and punctually in accordance with the commitment, take
responsibility for the debts and other financial obligations of the company in
proportion to the contributed capital.
b) Comply with the company’s
charter and the internal regulation;
c) Comply with the decisions
made by the Board of members;
d) If a member holds 10% of the company’s
charter capital or more, then he and his relevant persons must not hold more
than 5% of the shares or capital contribution of another securities company,
must not take advantage of their position to infringe the rights and interests
of the company and other members. Notification must be promptly sent to the
company in some cases as prescribed by law;
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f) Other obligations imposed by
the company in conformity with current law.
3. Shareholders (of the
joint-stock company) are obliged to:
a) Pay for the purchase of the
shares they register; take responsibility for the debts and other financial
obligations of the company in proportion to the capital contribution to the
company. Do not withdraw the capital contributed to the company in any shape or
form, unless the shares are repurchased by the company or purchased by another
person. If a shareholder withdraws part or all of the contributed shares
against this Clause, Executive Board members and company’s legal representative
are jointly responsible for the debts and other financial obligations of the
company in proportion to the value of withdrawn shares;
b) Comply with the charter and
internal regulation of the company;
c) Comply with the decisions
made by the General meeting of shareholders;
d) If a member holds 10% of the
company’s charter capital or more, the he and his relevant persons must not
hold more than 5% of the shares or capital contribution of another securities
company. Do not take advantage of their position to infringe the rights and
interests of the company and other shareholders.
e) Other obligations:
- Provide accurate address when
register for the purchase of shares, and fulfill other obligations as
prescribed by current law;
- Major shareholders must
sufficiently and responsively send notifications to the company, and disclose
information in accordance with legislation on securities;
...
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Article
18. Member register/shareholder register
1. The company must keep a
member/shareholder register since the operating license is issued.
2. The member
register/shareholder register must contain the basic information prescribed by
the Law on Enterprises.
3. The member register/shareholder
register may be papers, computer files or both (decided by the company).
4. The member/shareholder
register shall be kept at the head office of the company (the shareholder
register may also be kept at Vietnam Securities Depository).
5. The President of the Board of
members/the Executive Board is responsible for certifying registration of
capital contribution/shares of members/shareholders. He is also responsible for
keeping the register and ensuring the accuracy of the register, avoiding causing
damage to members/shareholders or any third parties. If the information in the
register kept at the company is not consistent with the register at Vietnam
Securities Depository, the register at Vietnam Securities Depository shall
prevail.
6. Other obligations imposed by
the company in conformity with current law.
Article
19. Share certificates (of joint-stock companies)
1. Shareholders of the company
shall be issued with share certificates corresponding to the amount and types
of shares they hold, except for the case mentioned in Clause 7 of this Article.
...
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3. Within ... days from the day
on which the valid application for permission to transfer shares according to
the company’s regulations, or within 02 months (or a period prescribed in the
issuance terms) from the day on which sufficient payment for the shares is made
according to the share issuance plan of the company, the shareholder shall be issued
with the share certificate without paying any fee to the company.
4. Where only part of the
registered shares in the same share certificate is transferred, the old
certificate shall be annulled and the new certificate reflecting the remaining
shares shall be issued by the company free of charge.
5. If the certificate of
registered shares is falsified, damaged or lost, the holder of registered
shares may request the company to reissue it but fees shall be charged.
6. The holders of certificates
of unregistered shares are responsible for the preservation of the
certificates. The company is not responsible for the loss or illegal use of the
certificates.
7. The company may issue
registered shares without issuing certificates. The Board of Directors may issue
regulations on permitting the transfer of registered shares (with or without
certificates) without a written transfer record according to the Law on
Enterprises, legislation on securities and the securities market, and this
charter.
Chapter
III
COMPANY ADMINISTRATION
Section 1.
ADMINISTRATION OF A JOINT-STOCK COMPANY
Article
20. Administration apparatus of the company
...
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2. The Executive Board.
3. The Board of Directors.
4. The Control Board.
I. The General meeting of
shareholders
Article
21. Entitlements of the General meeting of shareholders
1. The General meeting of
shareholders consists of voting shareholders and is the top-ranking unit of the
company.
2. Rights and tasks of the
General meeting of shareholders
a) Ratifying the development
orientation of the company;
b) Deciding the types and
amounts of transferable shares;
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d) Voting for, dismissing
Executive Board members and members of the Control Board;
e) Deciding to the investment or
sale of the assets valued at ≥ ... % of total asset value written in the latest
financial statement of the company;
f) Deciding the increase or
decrease of the company’s charter capital;
g) Deciding the amendments to
the company’s charter, except for adjustment of charter capital after selling
the additional shares that are transferable according to this charter;
h) Deciding to repurchase more
than ... % of the sold shares (the company may repurchase no more than 10% of
common shares);
i) Ratifying annual financial
statements;
j) Considering and penalizing
violations committed by the Executive Board and the Control Board that cause
damage to the company and its shareholders;
k) Deciding the restructuring
and dissolution of the company;
l) Other rights and tasks
decided by the company in conformity with current law.
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1. The shareholder being an
organization is entitled to appoint one or some authorized representatives to
exercise shareholders’ rights as prescribed by law. The organization that holds
at least 10% of common shares may authorizes up to 03 persons to attend the
General meeting of shareholders.
2. If the shareholder appoints
more than 01 representative, the quantity of shares and votes of each
representative must be specified.
3. The appointment, dismissal,
or replacement of the authorized representative must be notified to the company
in writing. The contents and time limit for notification shall comply with the
Law on Enterprises.
Article
23. Convening the General meeting of shareholders
1. The quantity, time, method
and location of the meeting:
a) The General meeting of shareholders
shall be convened at least once per year or at any time necessary. The General
meeting of shareholders must take place within Vietnam’s territory.
b) The General meeting of
shareholders shall be held within 04 months (or within a period decided by the
company but not to exceed 04 months) from the end of the fiscal year. If the
meeting cannot be held by the aforesaid deadline, the company must notify SSC
and hold the General meeting of shareholders within the next 02 months.
2. The power to convene the
General meeting of shareholders:
The Board of Directors is
responsible for convening the General meeting of shareholders. If the Executive
Board fails to convene the General meeting of shareholders as prescribed, the
President of the Board of Directors is responsible before the law and must pay
compensation for the damage to the company.
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a) The Board of Directors finds
it necessary in the company’s interests;
b) The number of remaining
members of the Board of Directors is smaller than the number required by law;
c) The general meeting is
requested by the shareholder or group of shareholder mentioned in Point a (x)
Clause 3 Article 16 of this charter;
d) The general meeting is
requested by the Control Board;
e) Other cases decided by the
company in conformity with current law.
2. The deadline for convening an
ad hoc General meeting of shareholders shall comply with law. if the Executive
Board fails to convene the ad hoc General meeting of shareholders, the Control
Board shall do it on behalf of the Executive Board. if the Control Board fails
to convene the General meeting of shareholders, the President of the Control
Board is responsible before the law and must pay compensation for the damage to
the company, and the shareholder or group of shareholder mentioned in Point a
(x) Clause 3 Article 16 of this charter is entitled to convene the General
meeting of shareholders.
Article
24. Agenda and contents of the General meeting of shareholders
1. The annual the General
meeting of shareholders shall consider approving:
a) The annual financial
statement;
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c) The report of the Control
Board on the administration of the Executive Board and the Board of Director;
d) The level of dividend payment
of each type of shares;
e) The total wage paid to the
Executive Board and the Control Board;
f) Other issues decided by the
company in conformity with current law.
2. the person that convenes the
General meeting of shareholders shall:
a) Make a list of shareholders
entitled to attend the General meeting of shareholders at least ... days before
the opening date of the General meeting of shareholders. Provide information
and resolve complaints related to the list of shareholders;
b) Establish the agenda of the
meetings and prepare the documents related to the meeting;
c) Determine the time and
location of the meeting;
d) Send invitations to all
shareholders entitled to attend the meeting. The notification of the General
meeting of shareholders must specify the agenda and basic information about the
issues being discussed and voted at the meeting.
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a) The suggestion is sent behind
schedule;
b) The shareholder or group of
shareholder does not hold sufficient common shares according to Point a (x)
Clause 3 Article 16 of this charter;
c) The suggestion is beyond the
competence of the General meeting of shareholders.
Article
25. Conditions for convening a General meeting of shareholders
1. The General meeting of shareholders
shall be held when it is attended by a number of shareholders represent at
least 65% of the voting shares. The specific ratio is decided by the company).
2. If the conditions for holding
the meeting are not satisfactory as prescribed in Clause 1 of this Article, the
second meeting shall be convened within 30 days from the intended date of the
first meeting. The second General meeting of shareholders shall be held when it
is attended by a number of shareholders that represent at least 51% of the
voting shares. The specific ratio is decided by the company).
3. If the conditions for holding
the second meeting are not satisfactory as prescribed in Clause 2 of this
Article, the third meeting shall be convened within 20 days from the intended
date of the second meeting. in this case the General meeting of shareholders
shall be held regardless of the number of shareholders that attend and the
ratio of voting shares they represent.
4. Shareholders may attend the
General meeting of shareholders in the following forms:
a) Directly attend the General
meeting of shareholders;
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c) Authorize another person to
attend the General meeting of shareholders. If a shareholder being an
organization has no authorized representative according to Clause 3 Article 96
of the Law on Enterprises and Article 22 of this charter, another person may be
authorized to attend the General meeting of shareholders.
Article
26. Formalities of a General meeting of shareholders
1. Before the opening date, the
company shall register the attendance of shareholders, ensure that all
shareholders entitled to attend the meeting are registered. Registered
shareholders shall be issued with voting cards corresponding to the issues that
need voting during the meeting.
2. The agenda and contents of
the meeting must be ratified by the General meeting of shareholders during the
first session. The agenda must specify the time for each issue.
3. The General meeting of
shareholders shall discuss and vote for each issue in the agenda. The voting
shall be carried out by collecting assenting votes, then dissenting votes, the
count the numbers of assenting votes, dissenting votes, and abstentions. Vote
counting result shall be announced by the chairperson right before the
conclusion of the meeting.
4. The shareholders or
authorized persons procedure attend the meeting after the meeting is commenced
may register and cast votes right after the registration. The chairperson is
not obliged to pause the meeting for late attendants to register. in this case,
the effect of the votes cast previously is not affected.
5. The chairperson, the
secretary and the tally board of the General meeting of shareholders:
a) The President of the
Executive Board is the chairperson of the meetings convened by the Executive
Board. If the president is absent or temporarily incapable of working, the
remaining members shall elect one of them the chairperson. If the no one is
capable of holding the post of the chairperson, the Executive Board member that
holds the highest position shall request the General meeting of shareholders to
elect a chairperson among the participants. In other cases, the person that
convenes the General meeting of shareholders shall request the General meeting
of shareholders to elect a chairperson;
b) The chairperson shall appoint
a person as the secretary to take the minutes of the General meeting of
shareholders;
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6. The chairperson and the
secretary of the General meeting of shareholders are entitled to take necessary
measures to preside over the meeting in a reasonable and orderly way according
to ratified agenda, in order to reflect the wishes of participants.
7. The person that convenes the
General meeting of shareholders are entitled to:
a) Request all participants to
undergo security check or facilitate other security measures;
b) Request competent authorities
to maintain the order of the meetings, banish the persons that fail to comply
with the directions of the chairperson, deliberately disturb the order and
obstruct the usual process of the meeting, or fail to satisfy the security
requirements from the General meeting of shareholders.
8. The chairperson is entitled
to postpone the General meeting of shareholders with an adequate number of
participants to another time (no more than 03 days from the intended date) or
to change the meeting location in the following cases:
a) The meeting location is not
spacious enough for every participant;
b) The participants obstructs
the meeting, disturb the order, or pose a threat to the fairness and legitimacy
of the meeting;
c) If the General meeting of
shareholders is postpone or paused against Point a and Point b of this Clause,
the General meeting of shareholders shall elect one of the participant as the
chairperson. The effect of votes cast at the meeting is not influenced by this
event.
Article
27. Cumulative voting
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2. The number of candidates that
a group may vote for depends on the number of candidates decided by the meeting
and the holding of each group, in particular:
a) Every shareholder or group of
shareholder that hold from ... % to under ... % of voting shares may nominate
no more than 01 candidate for the Executive Board and ... candidates for the
Control Board;
b) Every shareholder or group of
shareholder that hold from ... % to under ... % of voting shares may nominate
no more than 02 candidates for the Executive Board/the Control Board;
c) Every shareholder or group of
shareholder that hold from ... % to under ... % of voting shares may nominate
no more than 03 candidates for the Executive Board and ... candidates for the
Control Board;
d) Every shareholder or group of
shareholder that hold from ... % to under ... % of voting shares may nominate
no more than 04 candidates for the Executive Board and ... candidates for the
Control Board;
e) Every shareholder or group of
shareholder that hold from ... % to under ... % of voting shares may nominate
no more than 05 candidates for the Executive Board and ... candidates for the
Control Board;
f) The shareholder or group of
shareholder that hold from ... % of voting shares or more may nominate a full
number of candidates for the Executive Board the Control Board;
3. If the number of candidates
nominated by a shareholder or group of shareholder is smaller than the number
they may nominate, the other candidates shall be nominated by the Executive
Board or the Control Board or other shareholders.
4. The members of the Executive
Board or the Control Board are elected based on the numbers of votes in
descending order until the number of members is adequate according to this
charter. In case more than 01 candidate obtain the same number of votes for the
last member of the Executive Board or the Control Board, the General meeting of
shareholders shall run another vote for the candidates that obtain the same
number of votes, or select a candidate according to the criterion of the voting
regulation or the company’s charter.
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1. The General meeting of
shareholders shall ratify the decisions within their competence putting them to
the vote at the meeting or collect written opinions.
2. A decision of the General
meeting of shareholders shall be ratified at the General meeting of
shareholders when it is approved by a number of shareholders that represent at
least 65% of the voting shares held by the participants. The decisions on types
of shares and quantity of transferable shares, amendments to the company’s
charter; restructuring, dissolution of the company; sale of over 50% of total
asset value written in accounting books must be approved by a number of
shareholders that represent at least 75% of voting shares of the participants.
3. The vote for members of the
Executive Board and the Control Board must be taken in the form cumulative
voting, which means every shareholder has a number of votes corresponding to
his holding multiplied by the number of members being voted for. A shareholder
may cast all of his votes for one or some candidates.
4. The decisions ratified at the
General meeting of shareholders participated by the shareholders and authorized
persons that represent 10%% of voting shares are legitimate and effective even
the procedure, agenda, and formalities of the meeting are not conformable.
5. If the meeting is attended by
relevant persons without the right to vote, the resolutions of the General
meeting of shareholders shall be ratified when it is approved by a number of
shareholders that represent at least ... % of voting shares corresponding to
Point a and Point b Clause 3 Article 104 of the Law on Enterprises.
6. The Executive Board may
collect written opinions from shareholders any time to ratify the decisions of
the General meeting of shareholders in the company’s interest. The contents of
the opinion sheet, the procedure for sending, collecting, checking opinion
sheets and making records must comply with Article 105 of the Law on
Enterprises. Where written opinions are collected, a decision of the General
meeting of shareholders shall be ratified if it is approved by a number of
shareholders that represent at least 75% of voting shares (the specific ratio
shall be decided by the company).
7. Decisions of the General
meeting of shareholders must be notified to the shareholders entitled to attend
the General meeting of shareholders within 15 days from the ratification date.
Article
29. Effect of decisions of the General meeting of shareholders
1. A decision of the General
meeting of shareholders takes effect from the day on which the resolution is
ratified or its effective date written in the resolution (or decided by the
company).
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Article
30. Minutes of the General meeting of shareholders
1. The minutes of the General
meeting of shareholders must be taken in accordance with the Law on
Enterprises. The minutes may be written in Vietnamese language and foreign
languages with equal validity.
2. Minutes of the General
meeting of shareholders must be finished and ratified before the meeting
conclusion.
3. The chairperson and secretary
of the meeting are jointly responsible for the accuracy and truthfulness of the
minutes. The minutes of the General meeting of shareholders shall be sent to
all shareholders within 15 days from the conclusion date of the meeting.
4. The minutes of the General
meeting of shareholders, the list of participating shareholders and, the
ratified resolution, relevant documents and the invitation to the meeting must
be retained at the head office of the company.
II. Executive Board
Article
31. Entitlements of the Executive Board
1. The Executive Board is an
administration unit of the company and entitled, in the name of the company, to
exercise the rights and fulfill the obligations of the company that are beyond
the competence of the General meeting of shareholders. The Executive Board
shall ensure that the company’s operation is conformable with law, this
charter, and internal regulation of the company, treat the shareholders equitably
and respect the interests of the persons whose benefits are related to the
company.
2. Tasks and entitlements of the
Executive Board:
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b) Recommend types of shares and
quantity of transferable shares of each type;
c) Decide the offering of new
transferable shares; decide to raise additional capital in other forms;
d) Decide the sale prices of the
company’s shares and bonds;
e) Decide to repurchase no more than
10% of the issued shares of each type every 12 months; decide the plan for
offering and distributing treasury stocks in conformity with law;
f) Decide the investment plans
and investments within their competence and limits imposed by the Law on Enterprises,
the Law on Securities and the company’s charter;
g) Decide the solutions for
market development, marketing and technologies; ratify sale, purchase, loan,
and other contracts valued at more than 50% of total asset value written in the
latest financial statement (or another ratio decided by the company), except
for the contracts and transactions between the company and relevant persons;
h) Appoint, dismiss, sign
contract with, and terminate contracts with the Director and important managers
of the company; decide the salaries and benefits for such managers; appoint
authorized representative to exercise the right to hold shares of capital
contributions at other companies; decide the wages and other benefits for the
authorized representative;
i) Supervise and instruct the
Director and managers to administer everyday business;
j) Decide the organizational
structure, regulations on internal management; decide the establishment of
subsidiary companies, branches, transaction offices, representative offices,
capital contributions to and purchase of shares of other companies within the
limits imposed by law and the company’s charter;
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l) Submit annual financial
statements and reports on the operation of the Executive Board to the General
meeting of shareholders;
m) Recommend the level of
dividend payment, deadline and procedure for paying dividends or settling the
loss incurred during the operation;
n) Recommend the restructuring,
dissolution or bankruptcy of the company;
o) Establish a standard
procedure for convening meetings and voting at meetings of the Executive Board
for the General meeting of shareholders to ratify; procedure for nominating,
self-nominating, voting, and dismissing members of the Executive Board;
establish the procedure for selecting, designating, dismissing managers, and
procedure for cooperation between the Executive Board, the Control Board and
the Board of Directors; establish a mechanism for assessing the operation,
commendation and disciplinary actions applicable to members of the Executive
Board, the Board of Directors and other managers;
p) Establish departments or
appoint persons in charge of internal audit and risk management;
q) Resolve conflicts within the
company: prevent and resolve possible conflict between shareholders and the
company. The Executive Board may appoint persons to establish necessary systems
or departments specialized in resolving internal conflicts.
r) Recommendation: ratify the
transactions beyond the business and financial plans put forward by the
Director and the Board of Directors (if any);
s) Recommendation: the Executive
Board is entitled to reject the decisions made by the Director and the Board of
Directors, provided such rejection is well founded;
t) Recommendation: the Executive
Board shall immediately notify shareholders of:
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- The declining financial
condition of the company and non-fulfillment of the conditions prescribed by
law.
- The loss of ... % of owner’s
equity incurred by the company.
- Suggestion of replacement of
the President of the Executive Board or the chief of the Control Board..
- The occurrence of emergencies
that negatively affect the company’s and its clients’ interests.
u) Other tasks and entitlements
decided by the company in conformity with current law.
3. The Executive Board shall
ratify decisions by putting them to the vote at the meeting or collecting
written opinions (or another method decided by the company). Each member of the
Executive Board has one vote.
4. The Executive Board may authorize
the President of the Executive Board to perform part of its functions while the
Executive Board is not holding the meeting. The authorization contents must be
clear and specific. The decision on crucial issues related to the existence of
the company must not be authorized to the President of the Executive Board.
5. While performing their
functions and tasks, the Executive Board must comply with law, the company’s
charter and decisions of the General meeting of shareholders. If a decision
ratified by the Executive Board contravenes law or the company’s charter and
causes damage to the company, the members that ratify such decision are jointly
responsible for and shall pay compensation for the company; the members object
to the decision are not responsible.
6. If the resolutions ratified
by the Executive Board contravene law, administration principles and the
company’s charter, shareholders or the Control Board are entitled to request
the company to immediately revoke the resolutions and relevant decisions.
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a) Rights of members of
Executive Board:
- The right to information:
+ Members of the Executive Board
are entitled to request members of the Board of Directors and managers to
provide information and documents about the financial condition and operation
of the company and its units;
+ The managers that receive the
request must provide sufficient, accurate information and documents at the
request of the members of the Executive Board.
- The right to receive wages and
other benefits: the company is entitled to pay wages and salaries to members of
the Executive Board according to the business result and effect. Wages,
salaries and other benefits of Executive Board members shall be paid as follows
(or another method decided by the company):
+ Executive Board members shall
receive wages and bonus. Wages are calculated according to the number of
working days necessary for them to fulfill their duties, and the everyday wage.
The Executive Board shall estimate the wage paid to each member on the
principle of consent. The total wage for the Executive Board shall be decided
by the General meeting of shareholders during the annual meeting;
+ Members of the Executive Board
shall have the costs of meals, accommodation, travel, and other costs they
incur while performing their tasks covered;
+ Wages of Executive Board
members shall be included in the operating expense of the company in accordance
with legislation on corporate income tax, separated in the annual financial
statement, and reported to the General meeting of shareholders at the annual
meeting.
- Other rights established by
the company in conformity with current law.
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- Perform the assigned tasks in
accordance with the Law on Enterprises, the Law on Securities, relevant law,
the company’s charter, and decisions of the General meeting of shareholders;
- Perform the assigned tasks
honestly and carefully in the best interests of the company and its
shareholders;
- Be loyal to the interests of
the company and its shareholders; do not use information, secrets, business
opportunities of the company, do not take advantage of their positions and the
company’s assets for self-seeking purposes of to serve other organizations and
individuals;
- Attend all meetings of the
Executive Board and offer opinions about the issues discussed at the meetings;
- Responsively, sufficiently and
accurately notify the company of the companies that the Executive Board members
and their relevant persons own, hold shares or controlling contributions. Such
notification shall be posted at the head office and branches of the company.
- Executive Board members shall
not receive any raise or bonus when the company fails to settle due debts;
- Fulfill other obligations
imposed by law and the company’s charter;
- Other obligations shall be
established by the company in conformity with current law.
Article
32. Composition, term of office, and number of members of the Executive Board
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2. The Executive Board shall
serve a term of 05 years, and its member shall serve a term not longer than 05
years (the specific duration shall be decided by the company). Executive Board
members may be re-elected without term limit. The additional member or a member
that replaces a dismissed one shall serve the remaining term of the Executive
Board.
3. The Executive Board is
elected by the General meeting of shareholders by cumulative voting according
to Article 27 of this charter. If the number of candidates for the Executive
Board is not sufficient, the incumbent Executive Board, the Control Board and
other shareholders may nominate more candidates for the Executive Board, or
follow a method of nomination decided by the company. The method of nominating
candidates for the Executive Board must be announced at and ratified by the
General meeting of shareholders before they are nominated. Candidates for the
Executive Board must satisfy the conditions mentioned in Article 33 of this
charter.
4. Recommendation: information
about the candidates for the Executive Board must be announced before the
General meeting of shareholders is held, including: identity of each candidate,
identities of nominating shareholders or groups of shareholders; age and
qualifications of each candidate, experience and proficiency of each candidate;
positions held by the candidates over the last 05 years; current positions;
reports on contributions to the company as a Executive Board member if he is
appointed; relationship between the candidate and the company, positions in the
Executive Board or other influential positions held or nominated by the
candidate at other companies; relationship of between the candidate and
relevant persons in the company, relationship between the candidate and primary
partners of the company; information about financial condition of candidates
and other issues that might affect the tasks, independence of candidates as
members of the Executive Board; and the refusal to provide information at the
company’s request (if any).
5. If a new the Executive Board
is not elected when the term expires, the old the Executive Board shall keep
operating until the new one is elected and take over the work.
Article
33. Standards and requirements of members of the Executive Board
1. Capable of civil acts; not
being banned from establishing and administering companies according to the Law
on Enterprises.
2. Holding at least 5% of common
shares or proficient in business administration, securities, finance, or
banking.
3. For securities companies of
which over 50% of charter capital is held by the state: Executive Board members
must not related to the managers and the persons entitled to designate managers
of the parent company.
4. Not the Director, member of
the Executive Board, member of the Board of member of another securities
company, not concurrently holding the position of Executive Board member of
another company for more than 05 years (applicable to listed companies).
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6. Recommendation: do not
nominate employees of an independent audit organization that audit the company
over the last ... years to the Executive Board.
7. Recommendation: Executive
Board members must:
a) Be trusted by shareholders
(according to the votes) and other members of the Executive Board, managers and
employees;
b) Be able to balance the
interests of relevant parties and make reasonable decisions;
c) Have experience and
qualifications necessary for effectively administering the company;
d) Have experience of
international trading, knowledge of local issues, the market, the products, and
competitors;
e) Be able to work out solutions
from his knowledge and experience.
8. At the beginning of the term,
all members of the Executive Board must satisfy the conditions imposed by law,
the charter, and internal regulations of the company. During the term, members
must notify any change to the President of the Executive Board; The standards
and conditions in this Article are also applicable to additional members and
substitute members of the Executive Board.
9. Other requirements and
standards decided by the company in conformity with current law.
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1. The Executive Board may hold
periodic meetings and ad hoc meetings. The President of the Executive Board
shall convene the meeting of the Executive Board any time necessary. At least
01 meeting shall be held every quarter.
2. If a new President is elected
by the Executive Board during the new term, the first meeting for electing the
president and making other decisions must be held within 07 working days from
the day on which the Executive Board serving that term is elected. This meeting
shall be convened by the member that obtains the highest number of votes. If
more than 01 member obtains the highest number of votes, the members shall
elect one of them to convene the Executive Board under the majority rule.
3. the President of the
Executive Board shall convene the meeting of the Executive Board within 10 days
in the following cases:
a) The meeting is requested by
the Control Board;
b) The meeting is requested by
the Director or at least 05 other managers;
c) The meeting is requested by
at least 02 Executive Board members;
d) The request for the meeting
must be made in writing, specifying the purposes, issues that need discussing
and deciding within the competence of the Executive Board.
4. The President of the
Executive Board is responsible for the damage to the company if the meeting is
not convened on request, and the requester is entitled to convene the meeting
of the Executive Board instead of the President of the Executive Board.
5. the President of the
Executive Board or the person that convene the meeting of the Executive Board
shall send invitations to meeting at least ... working days before the meeting
date to members of the Executive Board, the Control Board, and the Director.
The invitation to meeting must specify the meeting time, location, agenda,
discussed issues, together with documents used at the meeting and votes.
Invitations shall be sent in accordance with the Law on Enterprises.
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7. The meeting of the Executive
Board shall be held when it is attended by at least 3/4 of the members. If the
number of members that participate in the meeting (hereinafter referred to as
participants) is not sufficient, the second meeting shall be convened within 15
days from the intended date of the first meeting. In this case, the meeting
shall be held when it is attended by over half of the Executive Board members.
8. The decision of the Executive
Board shall be ratified when it is approved by over 1/2 of the participants. If
the numbers of assenting and dissenting votes are equal, the vote of the
President of the Executive Board shall prevail.
9. Minutes of the meeting of the
Executive Board shall be taken and signed by all participants. If the
resolution of the Executive Board is ratified but a member refuses to sign on
the minutes, the signature certifying the attendance at the meeting is
considered the signature on the minutes of meeting. The minutes of meeting must
contain sufficient information according to the Law on Enterprises.
Article
35. Dismissal and addition of Executive Board members
1. The cases of dismissing
Executive Board members:
a) The Executive Board member is
no longer qualified according to Article 33 of this Article;
b) The Executive Board member
fails to participate in the activities of the Executive Board for 06
consecutive months, except for force majeure events;
c) The member hands in a
resignation;
d) There is proof that the
Executive Board member is incapable of civil acts;
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f) Other cases decided by the
company in conformity with current law.
2. Addition of Executive Board
members: when a member loses his membership as prescribed by law and the
company’s charter, is removed from duty, dismissed or for some reason cannot
keep holding the position of an Executive Board member, The Executive Board may
appoint another person to temporarily hold such position. The substitute member
of the Executive Board shall be elected at the next the General meeting of
shareholders. When the number of Executive Board members is reduced by 1/3 of
the necessary number prescribed in the company’s charter, the Executive Board
shall convene a General meeting of shareholders within 60 days to vote for
additional Executive Board members.
Article
36. Independent, non-executive member of Executive Board members (compulsory for
public securities companies)
1. A non-executive member of the
Board of Directors is the member that does not hold any executive position in
the company, which means he is not a member of the Board of Directors, the
Chief accountant, or any other manager designated by the Executive Board.
2. An independent member of the
Executive Board is the member that does not directly or indirectly own the
company; not a manager, an employee or relevant partner of the company
(specific regulations are provided in the Circulars on company administrations
applicable to public companies).
3. Recommendation: the members
and non-executive members shall serve the same term as other members, but they
are not reappointed to serve the next term.
4. Recommendation: independent members
have similar tasks and entitlements to those of other members of the Executive
Board, and the following entitlements:
a) Suggest the Executive Board
to hold ad hoc General meetings of shareholders, or suggest the Control Board
to hold ad hoc General meetings of shareholders if such suggestion is rejected
by the Executive Board;
b) Hire a advisory or audit
organization to perform their tasks;
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d) Offer independent opinions
about major transactions and notify managing authority where necessary.
Article
37. The President of the Executive Board
1. The President of the Board of
Directors shall be designated by the General meeting of shareholders or elected
by the Executive Board among the Executive Board members.
2. The President of the
Executive Board shall not concurrently hold the post of director, unless it is
accepted by the General meeting of shareholders. The President of the Executive
Board must be permitted by the General meeting of shareholders to hold the post
of director at the annual meeting.
3. Tasks and entitlements of the
President of the Executive Board:
a) Plan the operation of the
Executive Board;
b) Prepare the agenda, contents
and documents of meetings; convene and chair the meetings of the Executive
Board;
c) Organize the ratification of
decisions of the Executive Board;
d) Supervise the implementation
of decisions of the Executive Board;
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f) Direct and ensure the
effective operation of the Executive Board;
g) Establish, follow, and review
the procedures affecting the operation of the Executive Board;
h) Schedule the meetings of the
Executive Board and the departments affiliated to the Executive Board;
i) Establish the agenda of the
Executive Board meetings;
j) Keep in touch with the
Director, maintain the communication between the Executive Board and the Board
of Directors;
k) Ensure the sufficient and
accurate exchange of information between Executive Board members and the
President of the Executive Board;
l) Ensure the smooth
communication with shareholders;
m) Periodically assess the
operation of the Executive Board, its affiliated departments, and every
Executive Board members;
n) Enable non-executive members
and independent members of the Board of Directors to work effectively;
establish a constructive relationship between executive members and
non-executive members in the Executive Board;
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p) Other tasks and rights
decided by the company in conformity with current law.
4. If the President of the
Executive Board is absent, the Deputy President of the Executive Board (if any)
or another member shall be authorized in writing to exercise the rights and
perform the tasks of the President of the Executive Board in accordance with
this charter. If no one is authorized or the President of the Executive Board
is incapable of work or the post of President is vacant, other members shall
elect one of them to temporary hold the post of President of the Executive
Board under the majority rule.
Article
38. Internal audit and risk management department of the Executive Board
1. The internal audit department
shall perform their function independently, honestly, objectively, and
confidentially. Functions and tasks of the internal audit department:
a) Independently assess the
conformity with law, the charter, decisions of the General meeting of
shareholders and the Executive Board;
b) Assess the sufficiency and
effectiveness of the internal control system affiliated to the Board of
Directors in order to complete it;
c) Assess the conformity of the
business with internal policies and procedures;
d) Give advice on internal
policies and procedures;
e) Assess the conformity with
law, control measures for ensuring safety of assets;
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g) Assess the procedure for
identifying, assessing and managing risks to business;
h) Assess the effectiveness of
activities;
i) Assess the conformity with contractual
commitments;
j) Control the IT system;
k) Investigate internal
violations;
l) Audit the company and its
subsidiary companies;
m) Other functions decided by
the company in conformity with current law.
2. Functions and principles of
the risk management department:
a) Establish policies and
strategies for risk management, criteria for risk assessment; overall level of
risk to the company and to every department;
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c) Assess the sufficiency and
effectiveness of the internal risk management system affiliated to the Board of
Directors in order to complete it;
d) Other functions decided by
the company in conformity with current law.
3. Personnel of the internal
audit department:
a) Personnel of the internal
audit department are the persons that have not incurred any fines for
violations pertaining to securities, banking, or insurance over the last 05
years;
b) The chief of the internal
audit department must be proficient in law, accounting, audit; has experience,
reputation and power to effectively perform given tasks;
c) This person must not be
related to the department managers, practitioners, the Director, Deputy
Director, branch managers of the company;
d) Holding certificates of basic
training in securities and the securities market, certificate of training in
law on securities and the securities market, or practising certificates;
e) Not undertaking other jobs in
the company.
III. The Board of Directors
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1. The Board of Directors
consists of: the Director, Deputy Directors, and ... (other managerial
positions decided by the company).
2. Members of the Board of
Directors are hired or designated by the Executive Board. The Director shall
serve a term not longer than 05 years. The Director may be reappointed without
term limit. Other members of the Board of Directors shall serve a term of ...
years (decided by the company). The number of members of the Board of Directors
cum members of the Executive Board must be smaller than 2/3 of the number of
seats in the Executive Board (applicable to public companies).
3. The Board of Directors shall
establish and maintain the risk management system, including the procedures,
apparatus, and personnel in order to prevent the risks that might affect the
interests of the company and its clients; establish and maintain an internal
control system including a organizational structure and independent personnel,
internal procedures and regulations applicable to every position, unit,
department, and activity of the company in order to ensure the legitimate
achievement of targets.
4. The Board of Directors shall
formulate a Regulation for the Executive Board to ratify. The Regulation must
specify:
a) Responsibilities and tasks of
members of the Board of Directors;
b) The procedure for holding and
attending meetings;
c) The responsibility of Board
of Directors to submit reports to the Executive Board and the Control Board.
5. Tasks and entitlements of the
Director
The Director is the person that
operates the everyday business of the company, supervised by the Executive
Board and responsible to the Executive Board for his tasks. Specific tasks and
entitlements of the Director:
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b) Organize the implementation
of decisions made by the Executive Board;
c) Organize the implementation
of business plans and investment plans of the company;
d) Suggest plans for
organizational structure, suggest or issue internal regulations of the company;
e) Designate and dismiss the
managerial positions in the company, except for the positions subject to
approval by the Executive Board;
f) Sign contracts in the name of
the company, except for the contracts within the competence of the Executive
Board;
g) Submit annual financial
statements to the Executive Board;
h) Suggest plans for using
profits or settle loss;
i) Recruit employees;
j) Other tasks and entitlements
specified in the labor contract between the Director and the company under the
decision of the Executive Board;
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l) Other tasks and entitlements
decided by the company in conformity with current law.
6. While performing their tasks,
members of the Board of Directors have the following rights and obligations:
a) Obligations of members of the
Board of Directors:
- Perform the assigned tasks in
accordance with the Law on Enterprises, the Law on Securities, relevant law,
the company’s charter, decisions of the General meeting of shareholders and the
Executive Board;
- Perform the assigned tasks
honestly and carefully in the best interests of the company and its
shareholders;
- Be loyal to the interests of
the company and its shareholders; do not use information, secrets, business
opportunities of the company, do not take advantage of their positions and the
company’s assets for self-seeking purposes of to serve other organizations and
individuals;
- Responsively, sufficiently and
accurately notify the company of the companies that members of the Board of
Directors and their relevant persons own, hold shares or controlling
contributions. this notification shall be posted at the head office and
branches of the company;
- Members of the Board of
Directors shall not be given any raise or bonus when the company fails to
settle due debts;
- Other obligations imposed by
law and the company’s charter.
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- Members of the Board of
Directors shall receive wages, salaries, and bonus based on the business
result. Salaries of Members of the Board of Directors shall be decided by the
Executive Board;
- Wages and salaries of members
of the Board of Directors shall be included in the operating expense of the
company in accordance with law, separated in the annual financial statement,
and reported to the General meeting of shareholders at the annual meeting.
Article
40. Standards and requirements of the Director
1. Capable of civil acts; not
being banned from establishing and administering companies according to the Law
on Enterprises.
2. Holding at least 05% of
common shares of the company, or proficient and experienced in business
administration, experienced in finance, banking, and securities.
3. Not concurrently working for
another company.
4. Satisfying the requirements
for the Director of a securities company according to Regulation on
organization and operation of securities companies and relevant regulations.
5. If the securities company is
a subsidiary of a company, over 50% of charter capital of which is held by the
state in the form of shares or capital contribution, the Director must not be a
spouse, parent, adoptive parent, child, adopted child, sibling of the manager
of the parent company or the representative of state capital of the company.
6. Other requirements and
standards decided by the company in conformity with current law.
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The Director shall be dismissed
in the following cases:
1. The standards and requirements
for a Director prescribed in Article 40 of this charter are no longer
satisfied.
2. The Director hands in a
resignation.
3. The dismissal is decided by
the Executive Board.
4. Other cases decided by the
company in conformity with current law.
Article
42. Internal control and risk management department affiliated to the Board of
Directors
1. The internal control
department shall:
a) Supervise the implementation
of law, the company’s charter, decisions of the General meeting of
shareholders, the Executive Board, regulations, technical procedures, risk
management procedures of the company, relevant departments, and securities
practitioner in the company;
b) Supervise the implementation
of internal regulations, the activities posing a risk of internal conflict of
interest, especially the business activities of the company and personal
transactions of its employees; supervise the discharge of responsibilities of
officers, employees and partners.
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d) Supervise the calculation and
adherence to the regulations on financial safety;
e) Separate clients’ assets;
f) Preserve clients’ assets;
g) Control the adherence to the
laws on prevention of money laundering;
h) Other tasks given by the
Director.
2. Personnel of the internal
control department:
a) The chief of the internal
control department must be proficient in law, accounting, audit; has
experience, reputation and power to effectively perform given tasks;
b) Not related to the department
managers, practitioners, the Director, Deputy Director, branch managers of the
company;
c) Holding certificates of basic
training in securities and the securities market, certificate of training in
law on securities and the securities market, or practising certificates;
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e) Other requirements imposed by
the company in conformity with current law.
3. Tasks of the risk management
system:
a) Determine the policy and risk
acceptability;
b) Identify the risks;
c) Measuring the risks;
d) Supervise, prevent, detect,
and reduce the risk.
IV. Control Board
Article
43. Tasks and entitlements of the Control Board
1. Tasks of the Control Board:
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b) Inspect the rationality,
legitimacy, truthfulness, and carefulness of the business administration,
accounting, statistics, and financial statements;
c) Verify annual and bilingual
financial statements, income statements, reports on assessment of the
administration of the Executive Board; submit reports on the verification to
the General meeting of shareholders at the annual meeting;
d) Examine accounting books,
other documents of the company, the administration of the company where
necessary or at the request of the General meeting of shareholders, the
shareholder or group of shareholders mentioned in Point a (iii) Clause 3
Article 16 of this charter;
e) The Control Board shall carry
out the inspection within 07 working days from the receipt of the request for
inspection of the shareholder or group of shareholders mentioned in Point a (iii)
Clause 3 Article 16 of this charter. Within 15 days from the end of the
inspection, the Control Board shall submit a report on the inspected issues to
the Executive Board or the shareholder or group of shareholders that makes the
request. The inspection carried out by the Control Board must not obstruct the
normal operation of the Executive Board and must not interrupt the business of
the company;
f) If the shareholder or group
of shareholders mentioned in Point a (iii) Clause 3 Article 16 of this charter
requests for a lawsuit, the Control Board shall makes a written notification of
the receipt of the request, and file the lawsuit within 15 days from the
receipt of the request.
g) Suggest the changes to the
organizational structure and administration of the company to the Executive
Board or the General meeting of shareholders;
h) When a member of the
Executive Board or the Board of Directors is found committing violations
against the law or the company’s charter, which infringe the rights and
benefits of the company, shareholders or clients, or obligations of managers,
the Control Board shall immediately notify the Executive Board in writing and
request the violator to stop committing such violations, and concurrently take
remedial measures. If the violations are serious or the violator fails to stop
committing them by the deadline, the Control Board shall convene a General
meeting of shareholders to work out a solution;
i) If serious violations of law
are committed by members of the Executive Board or the Board of Directors, the
Control Board shall send a written report to SSC within 07 working days from
the day on which the violations are discovered;
j) The controller that fails to
report the such violations is responsible for the issues related to his tasks
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l) Other tasks given by the
company in conformity with current law.
2. Rights of the Control Board:
a) Employ independent advisors
to perform given tasks;
b) Seek opinions from the
Executive Board: the Control Board may seek opinions from the Executive Board
before submitting the report, conclusion, and suggestions to the General
meeting of shareholders;
c) The right to information:
- Invitation to meeting, opinion
sheet sent to members of the Executive Board and enclosed documents must be
sent to the Control Board at the same time and in the same manner;
- Reports of the Director
submitted to the Executive Board and other documents issued by the company must
be sent to the Control Board at the same time and in the same manner;
- Members of the Control Board
are entitled to access the documents kept at the head office, branches and
other locations; go to the workplaces of managers and employees of the company
to perform their tasks;
- The Executive Board, the
Director and other managers must provide sufficient and accurate information
and documents about the administration of the company at the request of the
Control Board.
...
...
...
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- Members of the Control Board
shall receive wages and other benefits under decisions of the General meeting
of shareholders. The General meeting of shareholders shall decide the level of
wage and annual budget of the Control Board based on the intended number of
working days, work load, work characteristics, and the average daily wage of a
member;
- Members of the Control Board
shall have the reasonable costs of meals, accommodation, travel, and advisory
services covered. The sum of wage and cost must not exceed the annual budget of
the Control Board, which is approved by the General meeting of shareholders,
unless otherwise decided by the General meeting of shareholders;
- Wages and operating cost of
the Control Board members shall be included in the operating expense of the
company in accordance with legislation on corporate income tax, separated in
the annual financial statement.
3. While performing their tasks,
members of the Control Board are obliged to:
a) Comply with law, the company’s
charter, decisions of the General meeting of shareholders, the code of
practice;
b) Exercise the rights and
perform the given tasks honestly and carefully in the best interests of the
company and its shareholders;
c) Be loyal to the interests of
the company and its shareholders; do not use information, secrets, business
opportunities of the company, do not take advantage of their positions and the
company’s assets for self-seeking purposes of to serve other organizations and
individuals;
d) Other obligations established
by the company in conformity with current law.
4. If the Control Board violates
neglects the duties mentioned in Clause 4 of this Article and causes damage to
the company or other people, members of the Control Board are responsible for
paying compensation for such damage. Other incomes and benefits earned by
members of the Control Board by neglecting their duties are owned by the
company.
...
...
...
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Article
44. Number of members and term of Control Board
1. The Control Board has ...
members (decided by the company).
2. The Control Board shall serve
a term of ... years. Members of the Control Board may be re-elected without
term limit.
3. More than half of the members
must reside in Vietnam, and at least one member is an accountant or auditor.
This member must not be an employee in the accounting or finance department of
the company, not a member or employee of an independent audit organization that
audit the company’s financial statements.
4. if the new Control Board is
not elected when the term expires, the old Control Board shall keep operating
until the new Control Board is elected and take over the job.
5. Members of the Control Board
shall be elected by the General meeting of shareholders. Members of the Control
Board shall be voted in the form of cumulative voting. The shareholder or group
of shareholder mentioned in Point a (xi) Clause 4 Article 16 of this Article
may nominate candidates for the Control Board in accordance with this charter.
Article
45. Operation and meetings of the Control Board
1. The Control Board must issue
regulations on the operation, procedure and formalities for holding its
meetings.
2. At least ... meeting(s) shall
be held every year.
...
...
...
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Article
46. Standards and requirements of members of the Control Board
1. 21 years of age or over,
capable of civil acts; not being banned from establishing and administering
companies according to the Law on Enterprises.
2. Not holding any managerial
position in the company. Not related to any member of the Executive Board, the
Board of Directors, or any manager.
3. The chief of the Control
Board must not be a member of the Control Board or a manager of another
securities company.
4. Recommendation: proficient in
securities and the securities market; proficient or experienced in accounting,
audit, finance, or banking.
5. Other requirements and
standards decided by the company in conformity with current law.
Article
47. Dismissal of members of the Control Board
1. A member of the Control Board
shall be dismissed in the following cases:
a) The member is no longer
qualified according to Article 46 of this Article;
...
...
...
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c) The member hands in a
resignation;
d) The dismissal is decided by
the General meeting of shareholders;
e) Other cases decided by the
company in conformity with current law.
2. If the Control Board neglects
its duties and likely to cause damage to the company, the Executive Board shall
convene a General meeting of shareholders to dismiss the current the Control
Board and elect a new one.
Section 2.
ADMINISTRATION OF LIMITED LIABILITY COMPANY (LLC)
Article
48. Administration apparatus
1. The Board of members.
2. The Board of Directors
3. The Control Board
...
...
...
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Article
49. Entitlements of the Board of members
1. The Board of members of a
multimember LLC, which consists of all members, is the top-ranking unit of the
company. Members being organizations shall appoint representatives to join the
Board of members.
2. The owner of the
single-member LLC shall appoint some representatives to serve a term not
exceeding 05 years to exercise the rights and fulfill the obligations in
accordance with law. The Board of members consists of all authorized
representatives. The authorized members must meet the standards and
requirements mentioned in Clause 2 Article 48 of the Law on Enterprises. The
owner is entitled to replace representatives any time.
3. Rights and obligations of the
Board of members
a) For multi-member LLCs:
- Decide the development
strategy and annual business plan of the company;
- Decide the increase of
decrease of charter capital, decide the time and method of rising capital;
- Decide the method of
investment and the investments of over ... % of total asset value written in
the latest financial statement (the specific ratio shall be decided by the
company);
- Decide the solutions for
market development, marketing, and technology transfers; ratify contracts to
take loans, give loans, and sell assets valued at ≥ ... % of total asset value
written in the latest financial statement;
...
...
...
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- Ratify annual financial
statements, the plans for using and distributing profit, or the plan for
setting loss;
- Decide the organizational
structure of the company;
- Decide the establishment of subsidiary
companies, branches, representative offices, and transaction offices;
- Amend the company’s charter;
- Decide the restructuring of
the company;
- Decide the dissolution or
request bankruptcy;
- Establish a standard procedure
for convening meetings and voting at meetings of the Board of members;
procedure for selecting, designating and dismissing the President of the Board
of members, the Director, managers; the procedure for cooperation between the
Board of members and the Control Board and the Board of Directors; establish a
mechanism for assessing the operation, commendation and disciplinary actions
applicable to the President of the Board of members, the Board of Directors and
other managers;
- Establish departments or
appoint persons in charge of internal audit and risk management;
- Resolve conflicts within the
company: prevent and resolve possible conflict between members and the company.
The Board of members may appoint persons to establish necessary systems or
departments specialized in resolving internal conflicts.
...
...
...
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- Other tasks and entitlements
specified in the Law on Enterprises, the Law on Securities, relevant law;
- Other tasks and entitlements
decided by the company in conformity with current law.
b) Rights and obligations of the
Board of members (of the single-member LLC):
- The Board of members shall
exercise the rights and fulfill the obligations of the owner in the name of the
owner, except for the cases subject to approval by the owner as prescribed by
law and the company’s charter; exercise the rights of the company in the name
of the company; take responsibility before the law and the owner for the
fulfillment of given tasks and rights as prescribed by law;
- Establish a standard procedure
for convening meetings and voting at meetings of the Board of members;
establish a procedure for cooperation between the Board of members, the Control
Board and the Board of Directors; establish a mechanism for assessing the
operation, commendation and disciplinary actions applicable to the Board of
Directors and other managers;
- Establish departments or
appoint persons in charge of internal audit and risk management;
- Other rights, tasks, and
obligations of the Board of members to the owner shall be decided by the owner
in conformity with current law.
Article
50. Convening the Board of members
1. Time, location, and formality
of the meeting:
...
...
...
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b) Meetings of the Board of
members shall be held at the head office (or another location decided by the
company).
2. The power to convene the
meeting of the Board of members:
a) The President of the Board of
members shall convene the meeting of the Board of members in writing (or
another method decided by the company). The invitation to meeting must contain
sufficient information according to the Law on Enterprises;
b) If the meeting is requested
by the member, group of members mentioned in Point h and Point I Clause 2
Article 16 of this charter, the President of the Board of members shall convene
the meeting within 15 days from the receipt of the request;
c) If the President of the Board
of members fails to convene the meeting by the deadline, such member or group
of member may request for permission to convene the meeting themselves. In this
case, they may request a competent authority to supervise the meeting of the
Board of members if necessary, and file lawsuit against the President of the
Board of members in their names of in the name of the company for neglecting
his obligations and infringe the lawful rights and interests of members;
d) The President of the Member
assembly that fails to convene the Board of members shall be personally
responsible for the damage to the company and relevant members of the company.
3. Agenda and contents of the
meeting:
a) The President of the Board of
members shall prepare or organize the preparation of the agenda and documents
for the meeting;
b) Members are entitled to
submit written suggestions about the meeting agenda at least 01 working day
before the meeting. The suggestions put forward right before the meeting shall
be accepted if they are approved by the majority of the participants. Contents
of the suggestions must comply with the Law on Enterprises.
...
...
...
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1. Members being organizations
shall appoint authorized representatives to join the Board of members. The
authorized representatives must meet the standards and requirements specified
in the Law on Enterprises. An authorized representative a number of votes
corresponding to the capital contribution the represent.
2. The appointment or replacement
of an authorized representative must be made in writing and notified to the
company within 07 working days from the appointment date. The notice of
authorization must contain the information mentioned in the Law on Enterprises,
and takes effect from the day on which it is received by the company.
3. Authorized representatives
shall exercise the rights and fulfill the obligations of members of the Board
of members in their names in accordance with the Law on Enterprises.
4. Authorized representatives
are entitled to attend all meetings of the Board of members, exercise the
rights and fulfill the obligations of members of the Board of members honestly
and carefully in the best interests of the members and the company.
Article
52. Conditions and formalities of meetings of the Board of members
1. The meeting of the Board of
members shall be held when it is attended by a number of participants that
represent at least ... % of charter capital.
2. If the conditions for holding
the first meeting are not satisfied, the second meeting shall be convened
within 15 days from the intended date of the first meeting. The second meeting
shall be held when it is attended by a number of participants that represent at
least ... % of charter capital.
3. If the conditions for holding
the second meeting are not satisfied, the third meeting shall be convened
within 10 days from the intended date of the second meeting. In this case, the
meeting of the Board of members shall be held regardless of the number of
participants and the amount of charter capital they represent.
4. Formalities of meetings of
the Board of members shall be decided by the company.
...
...
...
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Article
53. Ratifying decisions of The Board of members
1. The Board of members shall
ratify decisions by putting them to the vote at the meeting or collecting
written opinions (or another method decided by the company). The following
issues must be put to the vote at the meeting of the Board of members (unless
otherwise prescribed by the company):
a) Amendments to the company’s
charter;
b) Orientation of the company;
c) Election and dismissal of the
President of the Board of members; designation and dismissal of the Director;
d) Ratification of annual
financial statements;
e) Restructuring or dissolution
of the company;
f) Other issues decided by the
company in conformity with current law.
2. Ratifying decisions of The
Board of members
...
...
...
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- A decision of the Board of
members shall be ratified at the meeting when it voted for by a number of
participants that represent at least 65% of the total capital contributed by
the participants. The decisions on selling assets valued at ≥ ... % of the
total asset value written in the latest financial statement, amendments to the
company’s charter, restructuring or dissolution of the company must be voted
for by a number of members that represent at least ... % of the total capital
contributed by the participants.
- Where a decision is ratifying
by collecting written opinions, it shall be ratified when it is approved by a
number of members that represent at least ... % of charter capital. The
procedure for ratifying decisions of the Board of members by collecting written
opinions shall comply with the Law on Enterprises.
b) Each member of the
single-member LLC has a vote with equal validity (or the owner shall decide the
number of votes of each member). The decision of the Executive Board shall be
ratified when it is approved by over 1/2 of the participants. The decisions on
amendments to the company’s charter, restructuring of the company, transfer
part or all charter capital of the company must be approved by at least 3/4 of
the participants.
3. The decision of the Board of
members takes effect from the day on which it is ratified or its effective date
written in the resolution, except for the cases subject to approval by the
owner (of the single-member LLC).
Article
54. Minutes of meetings of the Board of members
1. Minutes of meetings of the
Board of members shall be taken and kept at the head office.
2. All members and
representatives that participate in the meeting shall sign on the minutes of
the meeting. If the resolution of the Board of members has been ratified
properly but a member or representative of the minority of member refuses to
sign on the minutes of meeting, the signature certifying their attendance is
considered the signature on the minutes of meeting.
3. The Minutes of the meeting
must be finished and ratified before the meeting conclusion. The minutes of the
meeting must contain sufficient information in accordance with law.
Article
55. The President of the Board of members
...
...
...
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2. The owner of the
single-member LLC shall appoint one person in the Board of members as the
President of the Board of members. The President of the Board of members may
concurrently hold the post of Director.
3. The President of the Board of
members shall serve a term of ... years. The President of the Board of members
may be re-elected without term limit.
4. Rights and tasks of the
President of the Board of members:
a) Prepare or organize the
preparation of the agenda and plans of the Board of members;
b) Prepare or organize the
preparation of the agenda and documents for the meetings of the Board of
examiners or collecting members’ opinions;
c) Convene and chair the
meetings of the Board of members or organize the collection of members’
opinions;
d) Supervise the implementation
of decisions of the Executive Board;
e) Sign the decisions of the
Board of members on behalf of the Board of members;
f) Other rights and tasks
prescribed by law;
...
...
...
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5. If the President of the Board
of members is absent, another member shall be authorized in writing to exercise
the rights and perform the tasks of the President in accordance with this
charter. If no member is authorized or the President of the Board of members is
incapable of work, the other members shall elect one of them to temporarily
exercise the rights and perform the tasks of the President under the majority
rule.
6. Obligations of the President
of the Board of members:
a) Comply with law, the
company’s charter, decisions of the Board of members and the owner;
b) Exercise the rights and
perform the given tasks honestly and carefully in the best interests of the company,
members and the owner;
c) Be loyal to the interests of
the company, members and the owner; do not use information, secrets, business
opportunities of the company, do not take advantage of their positions and the
company’s assets for self-seeking purposes of to serve other organizations and
individuals;
d) Responsively, sufficiently
and accurately notify the company of the companies that the President of the
Board of members related persons own, hold shares or controlling contributions.
This notification shall be posted at the head office and branches of the
company;
e) The President of the Board of
members shall not receive any raise or bonus when the company fails to settle
due debts;
f) Other obligations imposed by
law;
g) Other obligations shall be
established by the company in conformity with current law.
...
...
...
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Similar to Article 38 of this
charter.
II. The Board of Directors
Article
57. Composition, obligations and entitlements of the Board of Directors
1. The Board of Directors
consists of: the Director, Deputy Directors, and ... (other managerial
positions decided by the company).
2. Members of the Board of
Directors are hired or designated by the Board of members. The Director shall
serve a term of ... years. The Director may be redesignated without term limit.
3. The Director is the person
that operates the everyday business of the company, supervised by the Executive
Board and responsible to the Executive Board for his tasks.
4. Rights and obligations of the
Board of Directors and its members: similar to Clauses 3, 4, and 5 Article 39
of this charter.
Article
58. Standards and requirements of the Director
1. Capable of civil acts; not
being banned from establishing and administering companies according to the Law
on Enterprises.
...
...
...
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3. Not concurrently working for
another company.
4. For single-member LLCs: not
related to the Board of members or the person entitled to appoint authorized
representatives.
5. Satisfying the requirements
for the Director of a securities company according to Regulation on
organization and operation of securities companies and relevant regulations.
6. If the securities company is
a subsidiary of a company, over 50% of charter capital of which is held by the
state in the form of shares or capital contribution, the Director must not be a
spouse, parent, adoptive parent, child, adopted child, sibling of the manager
of the parent company or the representative of state capital of the company.
7. If the owner of the
single-member LLC is a state agency or a company, over 50% of charter capital
of which is held by the state, the Director must not be a spouse, parent,
adoptive parent, child, adopted child, sibling of the head or deputy of the
state agency or the representative of state capital at the company.
Article 59.
Dismissal of the Director
The Director shall be dismissed
in the following cases:
1. The standards and
requirements for a Director prescribed in Article 58 of this charter are no
longer satisfied.
2. The member hands in a
resignation;
...
...
...
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4. Other cases decided by the
company in conformity with current law.
Article
60. Internal control and risk management department affiliated to the Board of
Directors
Similar to Article 42 of this
charter.
III. Control Board
Article
61. Number of members and term of the Control Board
1. Members of the Control Board
of the multi-member LLC shall be elected by the Board of members. the Board of
members shall decide the method of election.
2. Members of the Control Board
of the single member LLC shall be appointed by the owner.
3. Other regulations on the
Control Board: similar to Article 44 of this charter.
Article
62. Tasks and entitlements of the Control Board
...
...
...
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a) The Control Board shall
supervise the Board of members (of the single-member LLC) , the President of
the Board of members, the Board of Directors administering the company; take
responsibility before the law and the owner/the Board of members for the
fulfillment of their tasks;
b) Inspect the rationality,
legitimacy, truthfulness, and carefulness of the business administration,
accounting, statistics, and financial statements;
c) Verify annual and bilingual
financial statements, income statements, reports on assessment of the
administration of the Board of members/the President of the Board of members,
and the Board of Directors. Submit the reports on assessment of annual
financial statements, reports on assessment of the administration of the Board
of members/the President of the Board of members, and the Board of Directors to
the owner/the Board of members.
d) Suggest changes to the
organizational structure and administration of the company to the owner/the
Board of members;
e) Examine accounting books,
other documents of the company, the administration of the company where
necessary or at the request of the owner/the Board of members, the member or
group of members mentioned in Point h and Point i Clause 2 Article 16 of this
charter (applicable to multi-member LLCs). Report or explain the issues raised
by the owner/the Board of members or the group of members within ... days from
the end of the inspection. The inspection carried out by the Control Board must
not obstruct the normal operation of the Board of members (of the single-member
LLC) and must not interrupt the business of the company;
f) When a member of the Board of
members, the President of the Board of members, or a member of the Board of
Directors is found committing violations against the law, which infringe the
rights and benefits of the company, members/owner or clients, or obligations of
managers, the Control Board shall immediately notify the Board of members/owner
in writing and request the violator to stop committing such violations and take
remedial measures. If the violations are serious or the violator fails to stop
committing them by the deadline, the Control Board shall convent or request the
owner to convene a meeting of the Board of members to work out a solution;
g) If serious violations of law
are committed by members of the Board of members, the President of the Board of
members of the Board of Directors, the Control Board shall send a report to
SSC;
h) The controller that fails to
report the such violations is responsible for the issues related to his tasks
i) Other tasks given by the
owner/the Board of members;
...
...
...
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2. Rights of the Control Board:
a) Employ independent advisors
to perform given tasks;
b) Consult the Board of members/the
President of the Board of members and the Board of Directors before submitting
the report, conclusion and suggestions to the owner/the Board of members;
c) The right to information:
- Invitation to meeting, opinion
sheet sent to members of the Board of members and enclosed documents must be
sent to the Control Board at the same time and in the same manner;
- Reports of the Director
submitted to the Board of members and other documents issued by the company
must be sent to the Control Board at the same time and in the same manner;
- Members of the Control Board
are entitled to access the documents kept at the head office, branches and
other locations; go to the workplaces of managers and employees of the company
to perform their tasks;
- The President of the Board of
members, the Director and other managers must provide sufficient and accurate
information and documents about the administration of the company at the
request of the Control Board.
d) Wages and other benefits:
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- Members of the Control Board
shall have the reasonable costs of meals, accommodation, travel, and advisory
services covered. The sum of wage and cost must not exceed the annual budget of
the Control Board, which is approved by the owner/the Board of members, unless
otherwise decided by the owner/the Board of members;
- Wages and operating cost of
the Control Board members shall be included in the operating expense of the
company in accordance with legislation on corporate income tax, and separated
in the annual financial statement.
3. While performing their tasks,
members of the Control Board are obliged to:
a) Comply with law, the
company’s charter, decisions of the owner/the Board of members, and the code of
practice;
b) Exercise the rights and
perform the given tasks honestly and carefully in the best interests of the
company and the owner/members;
c) Be loyal to the interests of
the company and the owner/members; do not use information, secrets, business
opportunities of the company, do not take advantage of their positions and the
company’s assets for self-seeking purposes of to serve other organizations and
individuals;
d) Other obligations imposed by
law;
e) Other obligations shall be
established by the company in conformity with current law.
4. If the Control Board violates
neglect the obligations mentioned in Clause 3 of this Article and causes damage
to the company or other people, members of the Control Board are responsible
for paying compensation for such damage. Other incomes and benefits earned by
members of the Control Board by neglecting their obligations are owned by the
company.
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Article
63. Operation and meetings of the Control Board
Similar to Article 45 of this
charter.
Article
64. Standards and requirements of members of the Control Board
Similar to Article 46 of this
charter.
Article
65. Dismissal of members of the Control Board
1. A member of the Control Board
shall be dismissed in the following cases:
a) The member no longer satisfy
the requirements for a member of the Control Board according to this charter;
b) The member fails exercise his
rights and perform his tasks for 06 consecutive months, except for force
majeure events;
c) The member hands in a
resignation;
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e) Other cases decided by the company
in conformity with current law.
2. If the Control Board neglects
its obligations and likely to cause damage to the company, the President of the
Board of members shall convene a meeting of the Board of members or request the
owner (of the single-member LLC) to consider dismissing the current the Control
Board and elect a new one.
Chapter
IV
MAINTENANCE OF
RELATIONSHIP WITH PARTNERS
Article
66. Possible disputes
1. The disputes between the
following entities are considered disputes between the company and its
partners:
a) Between shareholders/members
and the company;
b) Shareholders/members and the
Executive Board, the Control Board, the President of the Board of members, the
Director or the manager in the company’s charter;
c) Clients or other partners of
the company.
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Article
67. Methods of dispute settlement
1. Negotiation and conciliation:
all parties shall try to settle disputes through negotiation and conciliation.
The President of the Executive Board/the President of the Board of members
shall preside over the dispute settlement, unless the dispute is related to the
Executive Board or the President of the Executive Board/the President of the
Board of members. If the dispute is related to the Executive Board or the
President of the Executive Board/the President of the Board of members, any
party is entitled to appoint an independent export to act as an arbitrator
during the process of dispute settlement.
2. If the dispute cannot be
solved within 06 weeks from the beginning of the process of conciliation, or
the decision made by the mediator is not concurred with by the parties, any
party is entitled to take the dispute to economic arbitration or economic
court.
3. Cost of negotiation,
conciliation, and cost of litigation:
a) The parties shall incur the
cost related to the process of negotiation or conciliation;
b) The court shall decide on the
party that incurs the litigation cost.
Article
68. Transactions subject to approval
1. For joint-stock companies:
a) Contracts and transactions
between the company and the following entities are subject to approval by the
General meeting of shareholders or the Executive Board:
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- Members of the Executive
Board, the Board of Directors;
- The persons related to the
members of the Executive Board or members of the Board of Directors.
b) The Executive Board shall
approve the contracts and transactions valued at below 60% total asset value of
the company in the latest financial statement (or a smaller rate) In this case,
legal representative shall send the draft contract or notification of the
transaction to the members of the Executive Board, and post the draft contract
at the head office and branches of the company. The Executive Board shall
decide whether to approve the contract or transaction within 15 days from the
day on which it is post. The members with relevant benefits may not vote;
c) The General meeting of
shareholders shall approve other contracts and transactions, except for the cases
mentioned in Point b Clause 1 of this Article. The Executive Board shall submit
the draft contract or explanation for the transaction at the General meeting of
shareholders, or collect written opinions from shareholders. In this case,
relevant shareholders may not vote. A contract or transaction shall be approved
when it is accepted by a number of shareholders that represent at least 65% of
the remaining votes.
2. For multi-member LLCs:
a) Contracts and transactions
between the company and the following entities are subject to approval by the
Board of members:
- Members of the Board of
members, authorized representatives of members, the Director, legal
representative of the company, and relevant persons.
- The manager of the parent
company, the person entitled to appoint the manager of the company, and
relevant persons.
b) The legal representative of
the company shall send the draft contract or notification of transaction to
members of the Board of members, and post the draft contract at the head office
and branches of the company. The Board of members shall decide whether to
approve the contract or transaction within ... days from the day on which it is
posted. In this case, the relevant members in the contract or transaction may
not vote. The contract or transaction shall be approved if it is accepted by a
number of members that represent at least 75% of the remaining voting
contribution.
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a) Contracts and transactions
between the company and the following entities are subject to approval by the
Board of members, the Board of Directors and the Control Board under the
majority rule (each person has one vote):
- The owner of the company and
relevant person;
- Members of the Board of
members, the Board of Directors, the Control Board, and relevant persons.
- The manager, the owner, the
person entitled to appoint the manager of the company, and relevant persons.
b) The legal representative of
the company shall send the draft contract or notification of transaction to the
Board of members, the Board of Directors, the Control Board, and post the draft
contract or notification of transaction at the head office and branches of the
company.
c) The contract or transaction
mentioned in Point a Clause 3 of this Article shall be approved when the
following conditions are satisfied:
- The parties to the contract or
transaction are independent legal entities with separate rights, obligations,
assets, and benefits;
- Prices in the contract or
transaction are market prices when the contract is concluded or when the
transaction is made;
- The owner of the company
complies with the obligations mentioned in Clause 4 Article 65 of the Law on
Enterprises.
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1. When voting for the execution
of relevant transactions, the members of the Executive Board/the Board of
members/the Board of Directors/the Control Board that is related to such
transactions must not vote.
2. Contracts and transactions
shall be annulled if they are concluded or executed without approval as
prescribed in this charter and relevant law.
Article
70. Reporting and information disclosure
1. Obligation to disclose
information:
a) The company shall adhere to
the regulations on information provision, make periodic and irregular reports
as prescribed by legislation on securities and the securities market, or at the
request of competent authorities. The company is responsible for the accuracy,
truthfulness of disclosed information, data, and reports;
b) Information shall be so
disclosed that shareholders/members and investors may equitably access them at
the same time. Language of the information must be clear and unequivocal in
order to avoid causing confusion for shareholders/members and investors.
2. Obligation to disclose
information:
a) The company shall disclose
information about the operation of the company, including:
- Periodic information about
annual financial statements enclosed with reports made by the audit
organization;
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- Information at the request of
competent authorities.
b) The company shall disclose
information about the administration of the company at the annual General
meeting of shareholders/the Board of members, and in its annual report.
3. The company shall establish
and issue regulations about information disclosure in accordance with the Law
on Securities and its guiding documents. Appoint at least one person in charge
of information provision, who satisfies the requirements below:
a) Proficient in accounting,
finance; having certain IT skills;
b) Having their names and phone
numbers disclosed for shareholders/members to contact;
c) Having enough time to
discharge their duties, especially communicating with shareholders/members,
collecting opinions from shareholders/members, responding to such opinions and
resolving administrative issues.
4. Information must be disclosed
by the company’s legal representative or the person authorized to disclose
information. The company’s legal representative is responsible for the
information disclosed by the authorized person.
Chapter V
FINANCIAL MANAGEMENT
AND ACCOUNTING
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1. The fiscal year begins on
January 01 and ends on December 31 every year.
2. The fiscal year begins on
January 01 and ends on December 31 every year. If the first fiscal year of the
company is shorter than 04 months, the financial statement of that fiscal year
shall be combined with the financial statement of the next fiscal year.
Article 72.
Accounting system
1. The Company shall apply
Vietnam Accounting System or an accounting system accepted by the Ministry of
Finance; comply with accounting regulations applicable to securities companies promulgated
by the Ministry of Finance and their guiding documents. The building work must
facilitate state inspections of accounting and statistics.
2. The company shall make
accounting books in Vietnamese language and sort them by operations. Accounting
books must be accurate, up-to-date, systematic, and sufficient to prove and
explain the company’s transactions.
Article 73.
Audit
1. The annual financial
statements, reports on adequacy ratio made on December 31, biannual financial
statements and reports on adequacy ration made on June 30 must be audited by an
independent audit organization.
2. The independent audit
organization and its employees must be approved by SSC and accepted by the
General meeting of shareholders at the request of the Executive Board. The
organization that audits the first annual financial statement shall be
appointed by the Executive Board.
3. At the end of the fiscal
year, the company must prepare and send the annual financial statement to the
independent audit organization. The independent audit organization shall
examine, certify, and give opinions about the annual financial statement, make
an audit report and submit it to the Executive Board within 02 months from the
end of the fiscal year.
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Article 74.
Profit distribution principles
1. Conditions for distributing
profit to members/shareholders: the company shall only distribute profit to
members/common shareholders when the company makes profit, has fulfilled tax
obligation and other financial obligation as prescribed by law, and able to
repay due debts after distributing profit. Dividends for preferred shares shall
comply with the conditions applicable to each type of preferred shares.
2. Approving profit
distribution: the General meeting of shareholders/the Board of members shall
decide the ratio, method of bonus and profit distribution as prescribed by law.
The level of dividend payment must not exceed the level recommended by the
Executive Board (of the joint-stock company).
3. The Executive Board may
decide the payment of dividends in the middle of the period if such payment is
suitable for the profitability of the company.
4. Deadline for registration of
shareholders/members; date of dividend and bonus payment:
a) The Executive Board of the
joint-stock company shall decide the deadline for registration of
shareholders/members, the date of dividend and bonus payment in accordance with
the plan made by the General meeting of shareholders.
b) The Board of members of the
multi-member LLC shall decide the deadline registration, the date of dividend
and bonus payment.
5. The owner of the
single-member LLC shall decide the use of profit after tax obligation and other
financial obligations are fulfilled as prescribed by law.
Article 75.
Settlement of loss
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Article 76.
Building up compulsory funds
1. Every year, the company shall
extract post-tax profit to build up the following funds:
a) Additional reserve fund of
charter capital;
b) Financial reserve funds;
c) Welfare fund;
d) Other funds prescribed by
law.
2. The level, management and use
of the funds mentioned in Clause 1 of this Article shall comply with current
laws.
Chapter
VI
EXTENSION OF OPERATING
PERIOD, RESTRUCTURING, DISSOLUTION, BANKRUPTCY
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1. The Executive Board/the
President of the Board of members shall convene the General meeting of
shareholders/the Board of members at least 07 months before the expiration of
the operating period to vote for the extension of the company’s operation at
the request of the Executive Board.
2. The operating period shall be
extended if the extension is approved by at least 65% of the votes from voting
shareholders/members that attend the meeting or their authorized person.
Article 78.
Restructuring of the company
1. The company shall be
consolidated, merged, or converted after SSC gives and approval.
2. The procedure for
consolidation, merger, and conversion shall comply with the Law on Enterprises,
the Law on Securities, and relevant law.
Article 79.
Dissolution
1. The company shall be
dissolved or shut down in the following cases:
a) The operation period written
in this charter expires without being extended or the extension is not approved
by competent authorities.
b) The General meeting of
shareholders/the Board of members/the owner decides to dissolve the company
ahead of schedule. The premature dissolution of the company is subject to the
approval of SSC;
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d) SSC revokes the operating
license or the dissolution is declared by the court.
2. The company may only be
dissolved when other debts and financial obligations are settled. If the
company is insolvent, it shall be dissolved in accordance with the Law on
Bankruptcy and its guiding documents.
3. The Board of members/the
Executive Board/the owner shall establish a Liquidation Board to dispose of the
company’s assets when it is dissolved. All issues that arise during the process
of dissolution shall be resolved by the Liquidation Board. The Liquidation
Board is responsible to the Board of members/the Executive Board/the owner for
their decisions.
Article 80.
Bankruptcy
The process of bankruptcy shall
comply with legislation on bankruptcy applicable the companies engaged in
finance and banking.
Chapter
VII
FORMALITIES FOR
AMENDING THE CHARTER
Article 81.
Amendments to the charter
1. The amendments to this
charter are subject to the approval of the General meeting of shareholders/the
Board of members/the owner.
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Chapter
VIII
EFFECT
Article 82.
Effective date
1. This charter consists of ...
Chapters, ... Articles, ratified by the owner/the Board of members/the General
meeting of shareholders of the company on ... .
2. This charter is made into ...
copies with equal validity.
3. This is the only and official
charter of the company.
4. The copies of this charter
must bear the signature of the President of the Board of members/the President
of the Executive Board or at least 1/2 of the members of the Board of members
or the Executive Board.
5. This charter takes effect on
... .
6. Signatures of the
owner/founders/founding shareholders or legal representative (when the charter
is amended) (signature, full name, seal).