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MINISTRY OF
FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
224/2012/TT-BTC
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Hanoi,
December 26, 2012
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CIRCULAR
GUIDING THE ESTABLISHMENT AND MANAGEMENT OF CLOSED FUNDS,
MEMBER FUNDS
Pursuant to the Securities Law datd June 29,
2006;
Pursuant to the Law Amending and
Supplementing a number of Articles of the Law on Securities dated November 24,
2010;
Pursuant to the Decree No. 58/2012/ND-CP
dated July 20, 2012 of the Government detailing and guiding the implementation
of a number of Articles of the Law on Securities and the Law Amending and
Supplementing a number of Articles of the Law on Securities;
Pursuant to the Decree No. 118/2008/ND-CP
dated 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;
The Minister of Finance issues the Circular
guiding the establishment and management of the closed fund, the member fund.
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GENERAL PROVISIONS
Article 1. Scope of
regulation and subjects of application
1. This Circular provides for the capital
mobilization, establishment, management and supervision of closed fund
activities (not including real estate investment funds), the member fund in the
territory of the Socialist Republic of Vietnam.
2. Subjects of this Circular include:
a) The fund management companies, supervisory
banks, custodian banks;
b) The Securities Depository Center;
c) Securities Exchanges;
d) The Representative Board of the fund, members
of the Representative Board of the fund and the investors of the fund;
đ) Other relevant organizations and individuals.
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In this Circular, the terms below are construed
as follows:
1. Valid copy means a copy certified in
accordance with law.
2. Fund certificate means a type
of security certifying ownership of investors toward the fund’s part of
contributed capital.
3. Distribution agents of closed fund
certificates (hereinafter referred to as the Distribution agents) mean the
securities companies, fund management companies.
4. Liquidation value of a share is
determined by the value of the equity of the issuer divided by the total number
of outstanding shares.
5. Personal record includes the written
information provision in the form prescribed in Appendix 19 attached to this
Circular, a certified copy of the identity card, valid passport or other
certified legal personal identiftion.
6. Valid dossier means a dossier with
enough papers under the provisions of this Circular and the fully-declared
content in accordance with the law provisions.
7. Fund consolidation means a form of two
or more closed funds or member funds (hereinafter referred to as the
consolidated fund) consolidated into a new closed fund or member fund
(hereinafter referred to as the consolidating fund) by transferring all assets,
rights and legal interests, debts and other obligations to the consolidating
fund, and terminating the existence of the consolidated funds.
8. Valuation date means a date fixed by a
fund management company to determine the fund's net asset value.
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10. Group of the companies with together
ownership relationship means the parent company, subsidiaries,
joint ventures and associated companies.
11. Fund merger means a form of two or more
closed funds or member funds (hereinafter referred to as the mergered fund)
mergered into a closed fund or member fund (hereinafter referred to as the
merger receiving fund) by transferring all assets, rights and legal interests,
debts and other obligations to the merger receiving fund, and terminating the
existence of the mergered funds.
12. Fund charter capital means the
contributed capital by the investors and be recorded in the fund's charter.
13. Independent members of the Representative
Board of the fund mean the members who are not involved with the fund
management companies, supervisory banks in accordance with provisions in Clause
4 of Article 15 of this Circular.
14. Securities trading organizations mean
the securities companies, fund management companies, branches in Vietnam of
foreign fund management companies.
Article 3. The general
provisions on the closed funds, the member funds
1. Name of the fund must comply with the
provisions of the enterprise law, written in Vietnamese, which can include
numbers, symbols, is able to be pronounced and have at least the following two
elements:
a) The term "investment fund";
b) The name, in accordance with the objectives,
policies and invested asset structure of the fund.
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3. Where the fund charter regulates to allow
foreign investors to own more than 49% of the charter capital, the fund shall
register securities transaction codes and subject to the provisions of the law
on ownership limitation applicable to foreign investors.
4. The publication of information on the
activities of the fund as stipulated in this Circular is made through mass
media below:
a) On the electronic information page of the
fund management company. Where deemed necessary, the fund management company
shall disclose information at the same time on the electronic information page
of the supervisory bank, custodian bank, distribution agents;
b) The mass media of the Securities Depository
Center, the Securities Exchange (for closed funds);
c) Other mass media in accordance with the law
provisions on disclosure of information on stock market.
5. Fund charter issued for the first time is made
by the fund management company in the form prescribed in Appendix 11 attached
herewith. Investors registering to buy fund certificates are deemed to have
adopted this charter. In case of amendment and supplement of the fund charter
issued, the fund management company must consult opinion from the general
meeting of the investors. Where the fund charter providing for allowing the
implementation, the fund management companies are corrected errors of grammar,
spelling without affecting the content of the charter and without consulting
opinion from the general meeting of the investors. After amendment and
supplement of the fund charter is made, the fund management company must inform
the investors on the amendments and supplements.
6. The fund management company must prepare and
provide the investors a prospectus, summary prospectus, including all the
information in the form prescribed in Appendix 13 and Appendix 14, issued
together with this Circular. The prospectus, summary prospectus is updated when
arising the important information or updated periodically at a frequency
specified in the fund charter. The prospectus, summary prospectus must be
presented understandably, limited use of professional terms, posted on the
electronic information page of the fund management company and provide free of
charge to the investors upon request.
7. Assets of the fund are owned by the investors
participating, holding fund certificates corresponding to the ratio of
contributed capital, are not the assets of the fund management company,
supervisory bank or custodian bank. The fund management company is used assets
of the fund only for making payment or guaranteeing for the liabilities of the
fund, are not used for making payment for obligations of the company or other
organizations, individuals in any form and in all cases.
Chapter II
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Section 1. SELLING OFFER,
ESTABLISHMENT OF CLOSED FUNDS
Article 4. Registration for
selling offer of closed fund certificates, registration for further issuance of
closed fund certificates
1. The selling offer, issuance of closed fund
certificates to the public includes the first selling offer to mobilize capital
for establishing fund and further issuance to increase capital.
2. The first selling offer of fund certificates
to the public must be registered by the fund management company with the State
Securities Commission and comply with the following provisions:
a) The provisions of Clause 3 of Article 12 of
the Law on Securities;
b) The fund management companies have sufficient
capital in accordance with the law on the establishment, organization and
operation of the fund management companies; are not placed in a state of
operation control, special control, operation temporary cause, suspension of
operation or in the process of consolidation, merger, dissolution or
bankruptcy;
c) The fund management companies are not in a
state of being sanctioned the violations of regulations in the field of
securities that have not fully performed the sanctions and remedies under the
sanctioning decisions of the competent state authorities.
3. The further issuance of fund certificates
must be registered by the fund management companies with the State Securities
Commission and comply with the following provisions:
a) To meet the conditions specified in Clause 1
and Clause 2, Article 94 of the Law on Securities;
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- Information on the rate of the buying right;
principles and method of determining the issuance price; dilution rate of fund
certificates expected after the issuance; method of determining the issue
price; successful issuing rate or the minimum number of money obtained in the
issuance batch and handling plans in case of absence of successful rate of
issuance or not collecting fully minimum number of money as expected; selection
criteria of investors for selling offer and method to determine the conditions of
selling offer in the absence of distributing all the fund certificates to be
expected for issuance;
- Information on the plan of using capital;
objectives, plans, disbursement schedule (if any);
c) Issuance records, time for issuance, issuance
price specifically, criteria to determine and subjects offered in case of not
distributing all the buying rights of fund certificates expected for issuance
must be adopted by the representative board of the fund;
d) only be issued to the existing investors of
the funds through the issuance of buying rights of fund certificates. Buying
rights of fund certificates are allowed for transfer. In case the existing
investors do not exercise buying rights of fund certificates, the fund
management company is allowed selling offer to other investors.
4. Dossier of registration for the first selling
offer of the fund certificate to the public includes:
a) A written registration for selling offer of
the fund certificate to the public in the form specified in Appendix 01
attached herewith;
b) Fund charter;
c) The prospectus and summary prospectus;
d) The contract in principle regarding
supervisory, supervision activities between the custodian bank and fund
management company;
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e) A list together with the personal records,
copies of certificates of fund management practice of at least two (02) fund
administrators;
g) Underwriting commitments (if any).
5. Registration dossier for further issuance of
fund certificates includes:
a) Documents as prescribed at Points a, b and c,
Clause 4 of this Article, in which the fund charter must be defined the capital
increase of the fund;
b) Minute of the meeting and the resolutions of
the general meeting of the investors on adoption of the further selling offer
of fund certificate to increase capital to the fund, adoption of the plan of
issuance and use of capital; minute of meeting and resolutions of the
representative board of the fund on adoption of selling offer registration
dossier and the contents specified at Point c, Clause 3 of this Article;
c) The financial statement of the year preceding
the year proposed further issuance of fund certificates audited by auditing
organization approved to ensure thet the profit of the fund in that year must
be positive number.
6. Registration dossier for the first selling
offer of fund certificates to the public, the further issuance of fund
certificates specified in Clauses 4 and 5 of this Article shall be made into an
(01) original set together with an electronic data file. The original set is
sent in person to the State Securities Commission or sent by post.
7. The fund management companies must take
responsibility and make sure the information in the dossier accurately,
truthfully, not misleading and fully the important contents affecting the
decisions of investors. During the dossier’s consideration duration, the fund
management companies are obliged to update, modify, add documents if the
incorrect information is found, important information arises, or information
required to have on the dossier is omissed, or it deems necessity to explain
the issues that can cause misleading. The amendments and supplements must be
signed by those who have signed in offering registration dossier or by those
who have the same titles with such persons or of the legal representatives of
the companies.
In case of further issuance of closed fund
certificates, the amendments, supplements of documents and the generating
information must be published by the fund management companies in accordance
with provisions of Clause 4 of Article 3 of this Circular.
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9. Within thirty (30) days from the date of
receiving complete and valid dossier as prescribed in Clauses 4 and 5 of this
Article, the State Securities Commission issues a first offering registration
certificate of fund certificates to the public, a certificate of registration
for further issuance of fund certificates. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reason.
10. The offering registration certificate of
fund certificates, certificate of registration for further issuance of fund
certificates issued by the State Securities Commission to the fund management
company is the written confirmation that registration dossier for selling
offer, further issuance of fund certificates met fully the conditions and
procedures as prescribed by law.
Article 5. Offering for
sale, distribution of closed fund certificates
1. The offering for sale of fund certificates to
the public is made only after the State Securities Commission issues a
registration certificate for selling offer of fund certificates.
2. Within seven (07) days from the effective
date of the registration certificate for selling offer, the fund management
company shall publish the statement of selling offer in accordance with
provisions of Clause 4 of Article 3 of this Circular and at the same time
submit to the State Securities Commission. The statement of selling offer must
have full contents in accordance with provisions in Appendix No. 02, issued
together with this Circular.
3. The fund management companies, distribution
agents, underwritering organizations (if any) must distribute fund certificates
equally, publicly to ensure the registration time limit for buying fund
certificates to the investors at least twenty (20) days; this time limit must
be recorded in the statement of offering for sale.
Where the number of fund certificates registered
for purchase exceeding the number of fund certificates registered for selling
offer, the fund management companies must distribute all fund certificates
allowed to offer for sale to the investors corresponds to the ratio registered
for purchase from each investor.
4. All capital contributed by investors must be
frozen in a bank account opened at the custodian bank and only be released
after the effective date of the certificate of registration for fund
establishment. The custodian bank shall pay interest to the fund with a minimum
interest rate equal to the flexible fund withrawal applied to the period
freezing capital.
5. The fund management companies must complete
the distribution of fund certificates for a period of ninety (90) days from the
effective date of registration certificate for selling offer of fund certificates
to the public. In case of unable to complete the distribution of fund
certificates within this period, the fund management companies shall send
written request to the State Securities Commission for consideration of
extending the distribution of fund certificates.
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6. Within three (03) days from the date of
completion of the selling offer batch or the expiry date of the selling offer
registration certificate, the fund management company must notify the State
Securities Commission, and make disclosure of information specified in Clause 4
of Article 3 of this Circular for that the fund does not meet the conditions of
establishment upon the occurrence of one of the following cases:
a) There are less than one hundred (100)
investors to buy fund certificates, excluding professional securities
investors; or
b) The total value of mobilized capital is less
than fifty (50) billion VND or less than the value of the minimum capital expected
to be mobilized under the provisions of the fund charter (if any).
7. In case of not meeting the conditions to
establish fund in accordance with provisions in Clause 6 of this Article,
within fifteen (15) days from the date of completion of the selling offer batch
or or the expiry date of the selling offer registration certificate, the fund
management company must refund the investors any amount of money contributed,
including interest arising (if any), and shall bear all costs arising from the
mobilization.
8. The suspension or cancellation of the selling
offer batch is made under the provisions of Articles 22 and 23 of the
Securities Law.
9. In case of further issuance of fund
certificates to raise capital, order and procedures for notifying issuance,
distribution of buying rights shall comply with the provisions of Clauses 1, 2,
3, 4, and 5 of this Article and other relevant provisions of law on securities
applicable to the listing organizations and of enterprise law.
Article 6. Registration for
establishing closed fund, adjustment of the registration certificate of closed
fund
1. Within ten (10) days after the date of
completion of the selling offer batch or the expiry date of the selling offer
registration certificate, the fund management company must submit to the State
Securities Commission registration dossier for fund establishment, it
comprises:
a) A written registration for fund establishment
in the form prescribed in Appendix 03 attached herewith;
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2. In case of further issuance of fund
certificates to increase capital, within five (05) days after the end of the
issuance batch, the fund management company must request the State Securities
Commission to adjust the certificate of fund establishment registration.
Dossier requesting for adjustment of the certificate of fund establishment
registration includes the documents specified in Clause 1 of this Article.
3. Registration dossier for fund establishment,
dossier requesting for adjustment of the certificate of fund establishment
registration shall be made in one (01) original set together with an electronic
data file. The original set is sent in person to the State Securities
Commission or sent by post.
4. Within ten (10) days from the date of receipt
of complete and valid dossier, the State Securities Commission shall issue the
certificate of fund establishment registration or adjust the certificate of
fund establishment registration. In case of refusal, the State Securities
Commission shall reply in writing, clearly stating the reason.
Article 7. Certification of
ownership of fund certificates
1. Within five (05) days from the effective date
of the certificate of fund establishment registration or the adjusted
certificate of fund establishment registration, the fund management company is
responsible for certifying the ownership to the investors for the quantity of
fund certificates purchased and set up registers of investors with the
following principal contents:
a) Name and address of the head office of the
fund management company; name and address of the head office of the custodian
bank; full name of the fund; listed stock code of the fund (if any);
b) Total fund certificates to be offered, the
total number of fund certificates sold and the total capital mobilized for the
fund;
c) The list of investors: name, identity card
number or valid passport, contact address (for individuals), the full name,
abbreviated name, business registration number, address of headquarter (for
organizations); securities depository account number (if any); owned fund
certificate number; percentage of ownership; date of purchase registration and
date of payment;
d) Date of preparing the registers of investors.
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3. The fund management companies shall make
registration, depository of fund certificates in accordance with the law on
registration and depository of securities.
4. Within forty-five (45) days from the
effective date of the certificate of fund establishment registration, the fund
management company sends to the State Securities Commission:
a) Minute of the meeting or the minute of the
counting of votes and resolution of the meeting of investors on the
Representative Board of the fund, members of the Representative Board of the
fund;
b) A List and the personal records of the
members of the Representative Board of the fund.
Article 8. Listing of fund
certificates
1. Within thirty (30) days from the effective
date of the certificate of fund establishment registration or the adjusted
certificate of fund establishment registration, the fund management company
must complete the dossier and list fund certificates on the Stock Exchange in
accordance with the law provisions.
2. The investors registered to buy fund
certificates are deemed to have been passed the listing of fund certificates.
Where the fund charter regulates and published in the prospectus, the listing
of fund certificate, additional listing of new fund certificates issued
additionally shall not need to consult the general meeting of investors.
Section 2. INVESTMENT
ACTIVITY OF THE FUND
Article 9. Portfolio and
investment operation of the closed fund
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2. Closed fund is allowed to invest in the
following assets in Vietnam:
a) Deposits in the commercial banks in
accordance with provisions of banking law;
b) Monetary market instruments including
valuable papers, transfer instruments under the provisions of the banking
sector;
c) Government bonds, bonds guaranteed by the
government, local government bonds;
d) Shares listed or registered for trading and
bonds listed on the stock exchanges in Vietnam;
đ) Shares unlisted, shares unregistered for
trading of public company; unlisted bonds of issuers operating under Vietnamese
law; shares of joint stock companies, contributed capital in the limited
liability company;
e) The securities and other assets in accordance
with the law and the guidance of the Ministry of Finance.
3. Fund management companies are only sent money
and invested in monetary market instruments specified in points a and b, Clause
2 of this Article in the commercial banks approved by the Representative Board
of the fund.
4. The fund's portfolio structure must conform
to the provisions in the fund charter and must ensure:
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b) Do not invest more than twenty percent (20%)
of the total value of the fund's assets in securities and other assets (if any)
specified in points a and b, Clause 2 of this Article issued by the same
organization, except for government bonds;
c) Do not invest more than thirty percent (30%)
of the total value of the fund's assets on the assets specified at Points a, b,
d, đ and e, Clause 2 of this Article issued by an organization or a group of
companies having ownership relationship together;
d) Do not invest more than ten percent (10%) of
the total value of the fund's assets in real estate and financial assets
specified in point đ Clause 2 of this Article;
đ) Do not use capital and assets of the fund to
provide loans, guarantees for the loans, except for investment in deposits as
stipulated in point a clause 2 of this Article; do not use the assets of the
fund to implement the margin trading (loan for buying securities), short sales
(securities loan for sale);
e) Do not invest in its fund certificates,
invest in the securities investment funds, securities investment companies
established and operating in Vietnam;
g) In case of registered funds as foreign
investors in accordance with provisions of Clause 3 of Article 3 of this
Circular, in investment activity, the fund must comply with the provisions of
related law on the ownership restrictions with foreign investors.
5. Fund management companies are not borrow to
finance the operation of the fund, except for short-term loans to cover the
necessary expenses for the fund. The total value of the fund's short-term loans
shall not exceed five percent (5%) of the net asset value of the fund at any
time and a maximum term is thirty (30) days.
6. Except for otherwise specified at Point đ, e,
g, Clause 4 of this Article, the fund's investment structure is permitted
deviation of not more than fifteen percent (15%) compared with the investment
restrictions specified in Clause 4 of this Article and only due to the
following reasons:
a) Price changes in the market of the assets in
the portfolio of the fund;
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c) The consolidation, merger, purchase of
treasury shares, public offer to buy securities of the issuers;
d) Newly-registered fund for establishment or
increase of capital or merger but its operating time of not exceeding six (06)
months from the effective date of the certificate of fund establishment
registration or the adjusted certificate of fund establishment registration;
đ) The fund being under liquidation of assets to
be dissolved.
7. Within three (03) months from the date of
arising deviation due to the reasons specified in Clause 6 of this Article, the
fund management company must complete the adjustment of the portfolio of the
fund, to ensure compliance with the provisions of Clause 4 of this Article.
8. Where the deviation is a cause from that the
fund management company does not comply with the investment restrictions
prescribed by law or the fund charter, it must adjust the portfolio for a
period of fifteen (15) days from the date of arising the deviation. The fund
management company must pay compensation for damages to the fund (if any) and
bear all expenses incurred related to the adjustment of the portfolio. If there
is profit, it must be accounted immediately at all profits for the fund.
9. Within five (05) days from the date of
completion of the adjustment of the portfolio, the fund management company
shall disclose the information specified in Clause 4 of Article 3 of this
Circular, and notify State Securities Commission of the deviation of portfolio
structure, causes, time of arising or detections, the extent of damage and
compensation for the fund (if any) or the profits generated for the fund (if
any), the remedies, the taken time, the correct results. The notice shall
include the certification of a custodian bank.
10. When conducting the purchases, sale of assets
for the fund, the fund management company must comply with the following
provisions:
a) For securities listed or registered for
trading at the Stock Exchange, the transactions must be done through the
trading system of the Stock Exchange;
b) For assets not being securities listed or
registered for trading, or in the transactions agreed, the fund management
company must get written approval of the Representative Board of the fund of
the price range expected to perform, the time of the transaction, transaction
performing partners or partners not being allowed to perform transactions (if
any), type of assets of transaction before the transactions are made.
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1. The fund management companies are responsible
for determining the fund's net asset value and net asset value on a recurring
fund certificate at least once a week, in which:
a) The net asset value of the fund is determined
by the total asset value minus total liabilities of the fund. The total asset
value of the fund is determined by the market price or the reasonable value of
the asset (in case the market price can not be determined). The fund's total
liabilities are the debts or obligations of payment of the fund calculated up
to the date before the date of valuation. Method of determining market price,
reasonable value of assets in the portfolio, the value of debts and payment
obligations shall comply with the principles set out in Appendix 04 attached
herewith and internal regulations in the valuation manual;
b) The net asset value on a fund certificate is
equal the fund's net asset value divided by the total number of outstanding
fund certificates.
2. The fund management companies must build
valuation manual including the following minimum contents:
a) Principles, criteria for selection, change of
the organizations providing quotation. These principles should also be clearly
stated in the charter of the fund;
b) Principles, procedures to implement and the
valuation methods in accordance with the provisions of law, the provisions in
the fund charter and approved by general meeting of the investors. The
principles, processes of implementation and evaluation methods should be clear,
logical, consistent with international practice to be uniformly applied in
different market conditions.
3. Valuation manual must be approved by the
Representative Board of the fund and provided to the custodian bank to confirm
the calculation of net asset value. List of at least three (03) organizations
providing quotation, not being the related person of the fund management
company and the custodian bank, also must be approved by the the Representative
Board of the fund.
4. The fund's net asset value, net asset value
per fund certificate must be certified by the custodian bank. The value
certification must be made in writing, or accessed through the electronic
information system of the custodian bank approved by the fund management
company.
5. In the next working day after the custodian
bank certifies, information on the fund's net asset value, net asset value per
fund certificate is published in accordance with provisions of Clause 4 of
Article 3 of this Circular.
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7. In case of being valuated incorrectly, within
twenty-four (24) hours from the detection of the matter, the custodian bank or
fund management company (in case the custodian bank provides services to
determine net asset value) must notify and request the fund management company
or custodian bank to timely adjust.
8. Within five (05) days from the date of
detection of the net asset value’s being-valuated-incorrectly, the fund
management company or custodian bank (in case the custodian bank provides
services to determine net asset value) must revise and publish information in
accordance with provisions of Clause 4 of Article 3 of this Circular, at the
same time notify the State Securities Commission of the incorrect valuation,
including the cause of the incident, time of the incorrect valuation, handling
measures. Such a notice must be signed for certification by the fund management
company and the custodian bank.
Article 11. Fund’s profit
division
1. The investors are received incomes from the
funds according to profit distribution policy provided for in the fund charter
and according to the division plan adopted by the latest general meeting of the
investors. Incomes paid to the investors are drawn from the profits in the
period, or profits accumulated after making the full appropriation of funds (if
any) as specified in the fund charter and meeting all tax obligations of tax,
finance (if any) in accordance with the law provisions.
2. Incomes may be paid in cash, fund
certificates issued additionally. At least fifteen (15) days prior to the
distribution of incomes, the fund management company must notify to the
registered addresses of the investors. The notice must include the minimum
contents as specified in Appendix 20 attached herewith.
3. The payment of income of the fund must ensure
the principles of:
a) In accordance with the policy of profit
division provided for in the fund charter and announced in the prospectus,
summary prospectus;
b) Made after the fund has fulfilled its tax
obligations and other financial obligations as prescribed by law and set aside
sufficient funds in accordance with the provisions of the fund charter (if
any);
c) After making payment, the fund must still
have sufficient funds to pay all the due debts and other financial obligations
and ensure that the net asset value is not less than fifty (50) billion VND;
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e) In case of income distribution by fund
certificates, the fund must still have sufficient reciprocal capital from
undistributed after-tax profit based on the latest financial report audited or
reviewed.
Section 3. GENERL MEETING OF
THE INVESTORS, REPRESENTATIVE BOARD OF THE FUND
Article 12. Rights and
obligations of the investors participating in the fund
1. The investors have the following rights
and obligations:
a) The right to be treated equally. Each fund
certificate creates the owner the equal rights, obligations, benefits;
b) The right to freely transfer fund certificates,
except for transfer restrictions in accordance with the law and the fund
charter;
c) The right to be received fully periodical
information and unusual information on the operation of the fund;
đ) The rights and responsibilities to
participate in general meetings of the investors and exercise their right to
vote in person or through authorized representatives or perform remote voting;
đ) The obligation to pay the full amount to buy
fund certificates within the time limit specified in the fund charter,
prospectus and only take responsibility for the debts and other asset
obligations of the fund within the amount paid as purchasing the fund
certificates;
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2. The investors or group of the investors
holding more than 10% of the total fund certificates in circulation for a
continuous period of at least six (06) months or a smaller ratio stipulated in
the fund charter have the following rights:
a) To nominate persons to participate in the
Representative Board of the fund. The order and procedures for the nomination
is made in accordance with the law on enterprises applicable to the nomination
of candidates to participate in the Management Board of a shareholder or a
group of shareholders owning more than 10% of the total number of common
shares;
b) To review and extract the minute book and
resolutions of the Representative Board of the fund, the annual financial
statements and reports of the supervisory banks related to the operation of the
fund;
c) To request the fund management company to
convene irregular general meeting of the investors in the following cases:
- Having authentication bases on that the fund
management company, custodian bank violates the rights of the investors, or the
obligations of the fund management company, custodian bank or makes a decision
ultra vires provided for in the fund charter, supervisory contract or assigned
by general meeting of the investors, causing losses to the fund;
- The Representative Board of the fund has
expired its term of more than six (06) months but has not been elected another
for replacement;
- Other cases as stipulated in the charter of
the fund;
d) To request the fund management company, the
custodian bank to explain the unusual problems related to assets and management
operation and transactions of the fund's assets. The fund management company,
the custodian bank must send the written replies to the investors within
fifteen (15) days from the date of receipt of the written request;
đ) To propose the matters to be included in the
agenda of general meeting of the investors. The proposal must be in writing and
sent to the fund management company no later than three (03) working days
before the opening date, unless the charter fund otherwise prescribed time
limit;
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3. Requirements and recommendations of the
investors or group of the investors as stipulated in Clause 2 of this Article
shall be made in writing and must contain full name, permanently-residing
address, identiy card number, valid passport number or other lawful personal
certification for the investors as individuals; name, head office address,
nationality, number of establishment decision or business registration number
for the investors as organizations; number of fund certificates held and the
holding time of each investor, the total fund certificate of the whole investor
group and the ownership percentage in the total outstanding fund certificates
of the fund; requested content and proposals; bases and reason. In case of
convening the irregular general meeting of the investors as prescribed at Point
c, Clause 2 of this Article, it must be accompanied by documentation to verify
the reason of the convocation of the irregular general meeting of the
investors; or the documents or evidence on the violations of the fund
management company, custodian bank, the seriousness of the violation or the
decision ultra vires as stipulated in the fund charter, supervision contract.
Article 13. General meeting
of the investors
1. The general meeting of the investors shall be
convened and decided by the fund management company with the following
contents:
a) Amendment, supplement of the fund charter,
supervision contract;
b) Change of the policy, the fund's investment
objectives; decision on the percentage of ownership of foreign investors in the
fund; income distribution plan change; increase of the fees paid to the fund
management company, custodian bank; replacement of fund management company,
custodian bank;
c) Merger or consolidation of the fund;
dissolution of the fund; increase of the charter capital of the fund; extension
of the operation duration of the fund;
d) Decision on the contracts or transactions between
the fund and the investor owning more than 35% of outstanding fund certificates
or another percentage as stipulated in the fund charter; authorized
representatives and the relevant persons of the investors. In this case, the
investors with related interests may not vote. Contracts or transactions are
approved when there are the number of investors representing at least 65% of
the total remaining number of votes to agree;
đ) Election, dismissal, removal of the chairman
and members of the Representative Board of the fund; decision on the
remuneration and expenses for the operation of the Representative Board of the
fund; adoption of the selection of audit organizations approved to audit annual
financial statement of the fund, independent evaluation organization (if any);
adoption of financial statements, reports of assets and annual operation of the
fund;
e) Consideration and handling of violations of
the fund management company, the custodian bank and the Representative Board of
the fund causing losses to the fund;
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2. Program and content of the agenda of the
general meeting of the investors shall be made by the fund management company
in accordance with enterprise law. Annual general meeting of the investors is
held within thirty (30) days from the date that the annual financial statement
has been audited and approved by the audit organization.
3. The fund management company shall convene the
irregular general meeting of the investors in the following cases:
a) At the request of the custodian bank, or the
Representative Board of the fund as it deems necessary for the benefit of the
fund;
b) At the request of the investors or group of
investors as specified at Point c, Clause 2, Article 12 of this Circular;
c) Other cases as stipulated in the fund
charter.
4. The organization of the irregular general
meeting of the investors is made within thirty (30) days from the date that the
fund management company receives request for convening an irregular general
meeting of the investors. No later than fifteen (15) days before the meeting of
general meeting of the investors is taken place, the fund management company
must submit to the State Securities Commission the entire program, the content
of the meeting and related documents, at the same time publish information on
the convocation of the irregular general meeting of the investors, clearly
stating the reasons and objectives of the meeting.
5. Where the fund management company fails to
convene a general meeting of the investors as defined in Clause 3 and 4 of this
Article, the fund management company shall be responsible before the law and
have to pay for damages incurred for the fund (if any). Where the fund
management company fails to convene a general meeting of investors in
accordance with provisions of Clause 3 of this Article within thirty (30) days,
the Representative Board of the fund or the custodian bank shall replace the
management company fund to convene a general meeting of the investors by the
order and procedures prescribed in this Circular.
Article 14. Conditions and
terms and conditions for conducting the meetings, adoption of the decision of
general meeting of the investors
1. The fund management company is responsible
for building and publishing on the electronic information page of the company
the company's internal rules on the conditions, order and procedures for
convocation and terms and conditions for conducting the meetings and adoption
of the decisions at the general meeting of the investors in accordance with the
enterprise law and fund charter, including the following contents:
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b) The method of voting; order, procedures of
voting; announcement of the voting result;
c) Preparation and adoption of the minutes of
the general meeting of the investors; notification of resolutions of the
general meeting of the investors to the public; orders and procedures to be
against the general meeting of the investors.
2. The general meeting of the investors is held
when there is a number of investors to attend representing for at least
fifty-one percent (51%) of the total outstanding fund certificates. Form of
participation may be in person, or an authorization to participate, or a
participation in online meetings via the communication media as stipulated in
the fund charter.
3. Decision of the general meeting of the
investors is adopted at the meeting when being approved by the number of
investors representing for at least 65% of the total votes of all attending
investors.
4. If the first meeting does not qualify to be
conducted in accordance with the provisions of Clause 2 of this Article, the
second meeting is convened within thirty (30) days from the date of the first
meeting scheduled opening. In this case, the general meeting of the investors
is conducted regardless of the number of participating investors.
5. Except for the annual general meeting of the
investors or the general meeting of the investors for collecting opinions on
the issues specified in point b, c, d, Clause 1, Article 13 of this Circular,
the fund management companies are consulted the investors in writing, instead
of general meeting of the investors. Principles, content, order and procedures
for consulting the investors’ opinions in writing must be clearly stated in the
fund charter, in conformity with the principles in the business law. In this
case, the fund management companies must comply with the time limit for sending
slips and the meeting documents to the investors as for the case of inviting
general meeting of the investors.
6. Except for collecting the opinions of the
investors in the form of writing, the decision of the general meeting of the
investors is adopted when being approved by number of the investors
representing for at least 75% of the total number of votes.
7. The fund management companies and the
Representative Board of the fund take the responsibility to consider and ensure
the resolutions of the general meeting of the investors in accordance with the
provisions of the law and the fund charter. If the decision of the general
meeting of the investors is not in accordance with the provisions of the law
and the fund charter, the general meeting of the investors shall be held for
re-collecting opinions or written opinions of the investors shall be collected.
8. Within seven (07) days after the end of the
general meeting of the investors, or after the end of the collection of
investors’ opinions in writing in accordance with provisions of Clause 5 of
this Article, the fund management company must submit the minute and resolution
of the general meeting of the investors to the custodian bank, provide the
investors and disclose information under the provisions of Clause 4 of Article
3 of this Circular.
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1. Representative Board of the fund represents
the investors with from three (03) to eleven (11) members, is elected at the
general meetings of the investors or given written opinions by the investors. The
nomination, self-nomination of members of the representative Board of the fund
must comply with the following provisions:
a) Information relating to the candidates of
Representative Board of the fund must be published in the electronic
information page of the fund management company no later than ten (10) days
before the convening date of the general meeting of the investors to elect
members of Representative Board of the fund. Information must include: full
name, date of birth; qualifications; management level; experience in asset
management activities, or investment analysis or experience in the securities
activity, banking and insurance; the process of working and the achieved
results; the companies, funds that the candidates are holding the titles of
members of the Management Board, members of Representative Board of the fund;
benefits related to fund management companies, custodian banks (if any); other
relevant information, if any;
b) Where the number of candidates of the
Representative Board of the fund nominated and passed is still not enough the
necessary quantity, the in-power representative Board of the fund may nominate
additional candidates or organize nomination under the mechanism provided for
in the fund charter. Mechanism of nomination or the method that the in-power
representative Board of the fund nominates candidates representing the fund
must be clearly disclosed and must be adopted by the general meeting of the
investors before the nomination is conducted;
c) The order and procedures for the nomination
of candidates to be members of the Representative Board of the fund shall
comply with the provisions of enterprise law and securities law applicable to
members of the Management Board and the Management Board.
2. The following persons shall not be members of
the Representative Board of the fund:
a) Minors, those who have limited or lost civil
act capacity; those who are subject to criminal prosecution, serving judgments,
decisions on crime of domestic or foreign courts or are being prohibited by
court for business practice;
b) Those who are being convicted of infringing
property, infringing the economic management order, convicted on domestic or
foreign charges in sectors of securities, finance, banking, insurance without
effacing criminal record; those who have been convicted of domestic or foreign
charges from serious crimes or more;
c) Those who are prohibited from managing other
enterprises in accordance with law on enterprises;
d) Those who used to be private business owners,
partners of the partnerships, the directors (general directors), members of the
Management Board, Council of Members, Supervisory Board of the enterprises,
chairman and members of the Management Board of cooperative at the time that
the enterprise, the cooperative is declared bankruptcy, except the enterprise,
the cooperative is declared bankruptcy due to force majeure;
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e) Those who used to be suspended the titles of
chairmen of the Management Boards, members of the Management Boards, chairmen
of the Councils of members, members of the Councils of members, head of the
supervisory board, supervisory board’s members, Directors (general directors)
of the credit institutions, securities trading organizations, and insurance
enterprises under the provisions of specialized laws, or determined by the
competent authorities that those persons violate law leading to the
institutions’ being-revoked-license;
g) Those who are not participated in the
management and administration in accordance with law on officers, civil
servants and the law on prevention and combat of corruption;
h) As a member of more than five (05)
Representative Boards of the public fund, the Management Boards of the public
securities investment company;
i) Other cases as stipulated in the fund
charter.
3. The following cases, naturally lost their
status as members of the Representative Board of the fund:
a) Lost civil act capacity, died;
b) As representatives of the capital contributed
by investors as organizations when the organizations are terminated its legal
entity;
c) no longer being representatives of the
contributed capital by authorization of investors as organizations;
d) Expelled from the territory of the Socialist
Republic of Vietnam;
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4. At least two-thirds (2/3) of the members of
the Representative Board of the fund are the independent members by the
following principles:
a) Not being the relevant persons of the fund
management companies, custodian banks, or authorized representatives of these
organizations;
b) Satisfying the other provisions in the fund
charter (if any).
5. The Representative Board of the fund must
have:
a) At least one independent member with
qualification and experience in the field of accounting and auditing;
b) At least one independent member with
qualification and experience in the field of analysis of investment in
securities or asset management;
c) At least one member with legal expertise.
6. Tenure, standards, order, procedures for the
appointment, dismissal, removal, addition of members of the Representative
Board of the fund shall comply with the provisions of the fund Charter in
accordance with the provisions of law on enterprises and securities applicable
to members of the Management Board and the Management Board.
7. Within ten (10) days from the date of change
of members of the Representative Board of the fund, the fund management company
notifies the State Securities Commission and sends a list of the members of the
Representative Board of the fund in the form prescribed in Appendix 12 issued
together with this Circular with the personal records of the new members of the
Representative Board.
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9. The rights and obligations of the
Representative Board of the fund are specified in the fund charter and must
include at least the following tasks:
a) To represent the interests of investors;
carry out the activities in accordance with provisions of law to protect the
interests of investors;
b) To approve the valuation manual, list of the
organizations that provide quotation as prescribed in Clause 3, Article 10 of
this Circular; list of the banks receiving deposit of the fund as provided for
in Clause 3 of Article 9 of this Circular; approve the transactions provided
for in Clause 10 of Article 9 of this Circular; approve dossier requesting for
further issuance of fund certificates and other related contents according to
assigned competence;
c) To decide on the income distributed by the
profit division plan provided for in the fund charter or adopted by the general
meeting of the investors; implementation time, manner and form of profit
distribution;
d) To decide on problems without consistency
between the fund management company and the custodian bank on the basis of the
provisions of the law;
đ) To request the fund management company,
custodian bank promptly to provide all documents, information on asset
management activities and monitoring activities;
e) To perform other duties as prescribed by law
and the provisions of the fund Charter.
10. Decisions of the Representative Board of the
fund are adopted by voting at the meetings or collecting written opinions in
accordance with the fund charter. Each member of the Representative Board of
the fund has a voting.
11. Members of the Representative Board of the
fund have the following rights, responsibilities and obligations:
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b) To perform their duties honestly, diligently
for the best interests of the fund; may not authorize the others to exercise
their rights, obligations and responsibilities to the fund;
c) To fully attend the meetings of
Representative Board of the fund and have clear opinions of the issues
discussed.
12. In case the fund charter has no regulation,
remuneration and other benefits of the members of Representative Board of the
fund shall comply with the following provisions:
a) Members of Representative Board of the fund
are paid remuneration by their works, paid for the costs of food,
accommodation, travel and other reasonable costs based on the number of working
days, the nature of the works and the daily average remuneration in accordance
with provisions of the fund charter and decisions of the general meeting of the
investors. Remuneration and expenses that the fund has paid to each member of
the Representative Board of the fund are published in details in the annual
report of the fund. The fund management company is responsible for withholding
regular income tax of members of the Representative Board of the fund in
accordance with the relevant laws;
b) The total remuneration and expenses paid to
the Representative Board of the fund in year do not exceed the total operating
budget per year of the Representative Board of the fund adopted by the general
meeting of investors. These amounts are included in the management expenses of
the fund and must be made in a separate section in the annual financial
statements of the fund.
13. The fund management companies are
responsible for supporting in personnel, technical equipment, preparing
materials in the meeting of the Representative Board of the fund. The
Representative Board of the fund holds meeting at least once six (06) months or
as required by the fund management company. The order for holding the meeting,
the agenda and related documents are notified in advance to the members within
the time limit prescribed by enterprise law, the fund charter. Form to attend
the meeting can be in person, or through the communication media as stipulated
in the fund charter.
14. The Representative Board of the fund’s
meeting is held when there are at least two-thirds (2/3) of the members
attending the meeting, in which the number of independent members must be a
majority (51% or more of the members attending the meeting). Members not
directly attending the meeting have the voting rights to adopt by a written
vote. Decision of the Representative Board of the fund shall be adopted if it
is adopted by a majority of the members and a majority of independent members.
15. Minute of meeting of the Representative
Board of the fund must be detailed and clear. Secretary and other members of
the Representative Board of the fund participating in the meeting must sign in
the minute of the meeting. Minute of meeting of the Representative Board of the
fund shall be kept in the fund management company under the provisions of
enterprise law and fund charter.
Section 4. RESTRUCTURING OF
THE FUND
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1. Closed fund is consolidated, merged with
another closed fund in accordance with the decision of the general meeting of
the investors. At least thirty (30) days before the general meeting of the
investors is taken place, the fund management company must provide for the
investors the documents related to the consolidation or merger including:
a) Plan of consolidation or merger together with
the analysis report of the consolidation or merger with the contents specified
in Appendix 05 attached herewith;
b) The draft contract of consolidation or merger
with the content specified in Appendix 06 attached herewith;
c) The annual financial statements audited, the
quarterly financial statements of all merged, consolidated funds to the latest
quarter;
d) Draft charter of the fund, the prospectus,
the summary prospectus of the consolidated fund; draft charter of the merger
receiving fund, the prospectus and summary prospectus of the merger receiving
fund.
2. Within ten (10) days from the date of
adopting the decision of consolidation, merger of the general meeting of the
investors, the fund management company must notify the decision of
consolidation, merger of the fund to the creditors. Within thirty (30) days
from the date of receipt of the notice, the creditors may demand the fund to
make payment the amount payable in writing. If a written request is not sent to
the fund management company within the time limit mentioned above, the
creditors shall be considered as not requesting the merged, consolidated funds
to make payment before the consolidation or merger. Payment obligation shall be
made by the consolidation, merger receiving fund.
3. Where the consolidated, merged funds are all
managed by the same fund management company, all legal consulting service
costs, administrative costs and other services related to consolidation or
merger of the funds, are not accounted for in the cost of the funds, unless the
general meeting of the investors otherwise provides for.
4. Fund management company, the representative
board of the fund shall:
a) Provide adequately, timely, accurately and
truthfully the information on the process of consolidation, merger to the
investors;
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c) Payment of the fund’s debts to the creditors
at the request of the creditors. The payment must be completed no later than
the date of the consolidation or merger.
Article 17. The order and
procedures for consolidation, merger of the fund
1. Within sixty (60) days from the date of the
latest general meeting of investors of the fund to participate in
consolidation, merger to adopt the decision on consolidation, merger, fund
management company files dossier to request the State Securities Commission to
grant certificate of registration for establishment of the fund to the
consolidation fund or adjust certificate of registration for establishment of
the fund to the merger receiving fund. Dossier includes the following
documents:
a) Application for adjustment of certificate of
registration for establishment of the fund in the form prescribed in Appendix
07 attached herewith; together with the original of the certificates of
registration for the establishment of the merged, consolidated funds;
b) Plan of consolidation, merger and contract of
consolidation, merger adopted by the general meeting of the investors which
clearly specifies the roadmap to implement;
c) Report on assessment of the custodian banks
on the contents of the plan of merger, consolidation and contract of merger,
consolidation related to the principle of determining liabilities, assets and
net asset value at the date of consolidation, merger; conversion rules and
determination of the conversion rate; plan and the principle of transfer of
assets between the funds; number of fund certificates expected for circulation
of the consolidation, merger receiving fund;
d) Minutes of the meeting and the resolutions of
the general meeting of investors on the consolidation, merger;
đ) The list of creditors requesting for payment
of the payable accounts, the payable value of each creditor;
e) other relevant documents sent to the
investors;
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h) In the case of the fund consolidation,
additional materials include the consolidated fund charter, consolidated fund
prospectus, contract in principle on supervision signed with the custodian bank
adopted by the general meeting of investors of the consolidated funds.
2. Dossier requesting for grant of fund establishment
registration certificate for the consolidating fund, or adjusting the fund
establishment registration certificate for the merger receiving fund is made
into an (01) original set together with an electronic data file. The original
set is sent in person to the State Securities Commission or sent by post.
3. Within thirty (30) days from the date of
receiving complete and valid dossier as prescribed in Clause 1 of this Article,
the State Securities Commission shall grant or adjust fund establishment
registration certificate. In case of refusal, the State Securities Commission
shall reply in writing, and clearly state the reason.
4. The consolidation, merger date is the date
that the certificate of registration of the establishment of the fund or adjusted
fund establishment registration certificate is effective. Since this time:
a) The consolidated fund, merged fund ends its
existence at the same time the consolidating fund, merger receiving fund
inherits all assets, liabilities, rights, and legal interests and other
obligations of the merged, consolidated funds;
b) The investors of consolidated funds, merged
funds are received assets in the form of certificates of the consolidating
fund, merger receiving fund according to a conversion rate determined at the
date of consolidation or merger;
c) Certificate of merged, consolidated funds are
canceled on the date of consolidation or merger.
5. Within seven (07) days from the date of
consolidation, merger, fund management company discloses information on the
completion of the consolidation, merger under the provisions of Clause 4 of
Article 3 of this Circular. Content of publication of information includes:
a) Date of consolidation, merger;
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6. From the date of consolidation, merger, fund
management company, custodian bank shall:
a) Receive the handover of all accounting books,
documents, securities portfolio and other assets together with other documents
related to the merged, consolidated fund;
b) Receive and inherit all of the rights and
legitimate interests, take responsibility for the financial obligations, debts,
including tax debts, financial obligations to the State; continue to implement
the economic contracts of the merged, consolidated funds;
c) Complete the procedures of registration for
ownership of assets received from the merged, consolidated funds in accordance
with relevant law;
d) Represent the consolidating fund, merger
receiving fund to implement the obligations of the fund in accordance with the
relevant law provisions.
7. Within fifteen (15) days from the date of
consolidation, merger, custodian bank appraises the accuracy and notifies the
State Securities Commission the results of the consolidation, merger in the
form prescribed in Appendix 08 attached herewith.
Article 18. Extension of
the operation duration of the fund
1. The extension of the operation duration of
the fund shall comply with the following provisions:
a) The extension of the operation duration of
the fund adopted by the general meeting of investors of the fund;
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2. In a period of at least thirty (30) days
before the expiration of the operation, fund management company must conduct
extension procedures. Dossier requesting for extension of the fund include the
following documents:
a) Notice of extension of operation duration of
the fund in the form prescribed in Appendix 09 attached herewith;
b) Minutes of the meeting and the resolutions of
the general meeting of the investors of the fund on extension of the operation
duration of the fund, in which specifies the duration of operation of the fund;
c) The contract signed with the custodian bank
on the extension of the time to provide supervision services for the fund;
d) Details of portfolio and report on the net
asset value of the fund (certified by the custodian bank) at the latest
valuation date calculated to the date of applying for extension.
3. Dossier requesting for extension of the
operation duration of the fund shall be made in one (01) original set together
with an electronic data file. The original set is sent in person to the State
Securities Commission or sent by post.
4. Within fifteen (15) days from the date of
receiving complete and valid dossier as prescribed in Clause 2 of this Article,
the State Securities Commission shall adjust fund establishment registration
certificate. In case of refusal, the State Securities Commission shall reply in
writing, clearly state the reason.
Article 19. Dissolution of
the fund
1. The liquidation, dissolution of the fund is
conducted in the following cases:
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b) Custodian bank has been dissolved, declared
bankruptcy, unilaterally terminated the supervision contract or the supervision
contract has been terminated by the fund management company; certificate of
registration for operation of securities depository of custodian bank has been
revoked but the fund management company can not establish another custodian
bank to replace within two (02) months from the date of occurence of the event;
c) The net asset value of the fund is reduced to
less than ten (10) billion VND in six (06) consecutive months;
d) Expiration of the operation duration stated
in the fund charter or the general meeting of the investors makes decision to
dissolve the fund before the end of the operation duration stated in the fund
charter;
đ) Other cases as prescribed by the fund
charter.
2. Within thirty (30) days from the date of
dissolution of the fund as prescribed at Point a, b, c and đ, Clause 1 of this
Article, or three (03) months before the date of dissolution of the fund as
stipulated in point d Clause 1 of this Article, the fund management company or
custodian bank and the representative board of the fund (in the absence of the
fund management company) convenes a general meeting of investors to adopt the
dissolution plan of the fund.
3. The general meeting of investors has the
right to appoint an independent auditing organization to inspect, evaluate and
supervise all activities of liquidation, valuation, re-appraisal of valuation
and distribution of the fund's assets to the investors; maintain the operation
of the in-power the representative board of the fund to supervise the process
of liquidating and distributing its assets.
4. Fund management company, custodian bank is
responsible for implementation of the liquidation, distribution of assets to
investors under the plan adopted by the general meeting of investors. Where the
fund is dissolved under the provisions of Clause 1 of this Article, the
custodian bank is responsible for the liquidation, distribution of assets of
the Fund.
5. The general meeting of investors decides the
date of fund dissolution. From the date of dissolution of the fund, the fund
management company, the custodian bank may not:
a) Implement the investment activities,
purchases of assets for the fund;
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c) Give the assets of the fund to other
organizations and individuals;
d) Make payment for the contract in which the
value of the obligations of the fund is more than the value of the obligations
of the other party; or make debt payments to the creditors that are
simultaneously the debtors of the fund without offset;
đ) carry out other transactions for the purpose
of dispersing assets of the fund.
6. Assets of the fund being dissolved,
including:
a) Assets and property rights which the fund has
at the time that the fund is forced to be dissolved;
b) Profits, assets and property rights that the
fund will have due to the implementation of the transactions established prior
to the time the fund is forced to be dissolved;
c) Assets that are things used to secure the
obligations of the fund. Where using assets as things used to secure to make
payment to the secured creditors, if the value of things used to secure exceeds
the payable secured debts, the excess is the fund's asset.
7. The liquidation of assets as stock listed,
registered for transaction is done through the trading system of the stock
exchanges, or transaction by other means to ensure the greatest benefit for the
fund and in accordance with plan of dissolution adopted by the general meeting
of investors.
Where independent audit organization or
representative board of the fund implements the supervision of the liquidation
process of assets in accordance with provisions of Clause 3 of this Article,
the sale of assets that are not stock listed, registered for transaction must
also be approved in writing by the independent audit organization or
representative board of the fund (if any) as specified in point b Clause 10,
Article 9 of this Circular.
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a) The porfolio transferred to the investors
must cover a full range of assets in the fund's portfolio, the structure of
each asset like the portfolio of fund under the plan of liquidation and
distribution of assets;
b) In case of being securities registered, of
centralized depository, the transfer of assets to the investors, the fund
management company, custodian bank shall comply with the guidance of the
Securities Depository Center;
In case of being other assets required to
register ownership, the fund management company, custodian bank shall require
the organizations receiving investment capital, issuers, shareholders book
managing organization to register asset ownership for the investors. The
payment is considered as completion after ownership of the investors was
registered.
9. Proceeds from the liquidation of the fund’s
assets and the remaining assets are paid in the following priority order:
a) Financial obligations to the State;
b) The amounts to be paid to the fund management
company, custodian bank, other payables and fund dissolution costs. In the case
fund is required to be dissolved in accordance with point a or b, Clause 1 of this
Article, the fund is not required to pay to the fund management company or
custodian bank the costs arising under the contract from the date of occurance
of the conditions;
c) The remaining assets are used to pay
investors corresponding to proportion of capital contributed by the investors
in the fund. Where they are the assets of ownership registration, the fund
management company, custodian bank shall require the Securities Depository
Center, organization managing shareholder books, issuers and organizations
receiving investment capital (for securities unregistered for depository,
shares) perform the allocation and registration of asset ownership for the
investors.
10. Result of liquidation of the fund's assets
must be certified by the custodian bank, the fund management company (if any)
and approved by the independent audit organization or representative board of
the fund (if any) performing the supervision of the liquidation of assets.
Article 20. The order and
procedures for dissolution
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2. Documents for making announcement of the
dissolution of fund include:
a) Notice of fund dissolution in the form
prescribed in Appendix 09 attached herewith;
b) Minutes of the meeting and the resolutions of
the general meeting of the investors on the dissolution of fund, together with
plan and roadmap of liquidation and distribution of assets adopted by the
general meeting of the investors, which clearly states the principle to
determine the net asset value at the date of dissolution and the during the
liquidation of assets of the fund in accordance with the provisions of law, the
provisions of the fund Charter and valuation manual; asset distribution method
for investors and provide information for the investors regarding the
liquidation and distribution of assets;
c) Written commitment signed by the legal
representative of the fund management company (if any) and the custodian bank
on the taking responsibility for completing the asset liquidation procedures
for fund dissolution.
3. After fifteen (15) days from the date of the
notice, if the State Securities Commission has no opinion, the fund management
company, custodian bank shall publish notice of fund dissolution as specified
in Clause 4 of Article 3 of this Circular. At the same time, the fund
management company carries out the order, procedure to cancel the voluntary
listing, registration of fund certificates under the guidance of the Stock
Exchange, the Securities Depository Center.
4. Liquidation of assets, the time limit for
asset liquidation of fund is made under the plan of dissolution adopted by the
general meeting of the investors, but not more than two (02) years from the
date of publication of the notice of the dissolution of the fund. During the
liquidation of fund’s assets for dissolution, management fee, supervision fees
and other fees collected by the tariff adopted by the general meeting of the
investors. After the date of fund dissolution, monthly, the fund management companiy
provides for the investors with information on the payment rate per fund
certificate, expenses incurred during the period, the remaining net asset value
of the fund, the remaining net asset value per fund certificate and value of
assets distributed to investors in the form prescribed in Appendix 16 attached
herewith. Notices sent to the investors must be provided to the State
Securities Commission together with a report on the assets and report on the
fund's portfolio in the form prescribed in Appendix 17 attached herewith.
5. Within five (05) days from the date of
completion of the dissolution of the fund, the fund management company,
custodian bank (if there is no fund management company) is responsible for the
publication of information on the completion of liquidation, distribution and
dissolution of the fund in accordance with provisions of Clause 4 of Article 3
of this Circular, at the same time notifying the State Securities Commission
the fund dissolution results, including the following documents:
a) The report certified by the fund management
company, the custodian bank and the audit organization or the representative
board of the fund (if any) on the liquidation of assets of the fund, the
repayment of debts and the performance of other asset obligations for the
creditors, those who have other rights and obligations, including financial
obligations to the State under the provisions of Appendix 10 attached herewith.
The report must include a list of creditors and the debts paid, including tax
debts;
b) The report certified by the fund management
company, the custodian bank and the audit organization or the representative
board of the fund (if any) on the process of liquidation of assets, the method
of liquidation and distribution of assets; total value of assets collected
after the liquidation; total payable debts and the remaining assets for
distribution to the investors. Where the fund distributing assets not money,
additional documentation includes written certification of the Securities
Depository Center on the completion of distribution, registration of securities
for the investors at the request of the fund Management Company, custodian bank
and investors; written certification of the organization managing books of
shareholders, issuers, enterprise receiving investment capital of the fund for
the completion of transfer of ownership of shares, the equity for each investor
participating in the fund at the request of the fund management company;
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d) Report on the evaluation of the results of
asset liquidation of the audit organization designated by the general meeting
of the investors or of the representative board of the fund (if any).
6. Where the notice on the liquidation results
is not accurate, having forged documents, the fund management company,
custodian bank, the concerned organizations or individuals shall be jointly
responsible for payment of the outstanding debts and take personal
responsibility before law for the consequences arising within three (03) years
from the date of report on the dissolution result to the State Securities
Commission.
Chapter III
MEMBER FUND
Article 21. Establishment
of member fund
1. Member fund contributed capital to establish
by the members meeting the provisions of point b Clause 2 of this Article on
the basis of the Capital Contribution Agreement Memoradium and fund charter.
2. The establishment of member fund must be
reported to the State Securities Commission and meet the following conditions:
a) Capital contributed actually must be at least
fifty (50) billion VND;
b) Having a maximum number of thirty (30)
contributing members and including only members as domestic legal entities,
foreign organizations;
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d) The assets of the fund deposited at a
depository bank independent from the fund management company.
3. Report records on the establishment of the
member fund include the following documents:
a) Application for registration of the operation
of the member fund made by the fund management company in the form prescribed
in Appendix 03 attached herewith;
b) Fund charter, including the relevant contents
in the form prescribed in Appendix 11 attached herewith;
c) The prospectus, the cover page of the
prospectus must be stated clearly the principle of operation of the fund: "This
fund must not comply with the provisions of the law governing investment
activity of securities investment fund implementing selling offer of fund
certificates to the public. The investment in this fund is only suitable for
the organizations willing to accept a potential high level of risk from the
investment of the fund. Organizations investing in this fund should consider
carefully before contributing capital, making investment decision";
d) Asset depository contract;
đ) Minutes of capital contribution agreement, a
list of organizations to contribute capital in the form prescribed in Appendix
12 attached herewith and the following documents:
- A certified copy of the establishment
decision, business registration certificate or other equivalent document of
limited partners. For members as foreign organizations, a copy of the business registration
certificate or equivalent document must be certified by the agency where the
organizations registered not exceeding six (06) months before the date of
completion of dossier registering for fund establishment and must be translated
and notarized public in accordance with relevant laws;
- Minutes of the meeting and the decision of the
general meeting of shareholders or the Management Board, the decision of the
Council of members or the owners in accordance with the provisions of the
company charter of the organization to contribute capital on the capital
contribution to the fund, on appointment of authorized representative of
contributed capital together with the personal records of this person;
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e) Depository bank’s certification on the scale
of contributed capital.
4. Report records on the establishment of the
member fund is made into one (01) original set together with an electronic data
file. The original is sent in person to the State Securities Commission or sent
by post.
5. Fund management companies shall ensure that
the information in the record must be complete, accurate and truthful. When the
record is being under consideration, the fund management companies are obliged
to update, modify, add documents if they found that information is incorrect,
important information arises, or important information is omitted which is
required to have in the record according to provisions. The amendments and
supplements must be signed by those who have signed in the record or of those
who have the same titles with those persons or the legal representative of the
company.
6. The fund management companies and the
organizations contributing capital to establish member funds may not use the
mass media to advertise, call for capital contribution.
7. Within fifteen (15) days after receiving a
complete record in accordance with provisions in Clause 3 of this Article, the
State Securities Commission notifies in writing to confirm that the fund
management company has reported on the establishment of member fund. In case of
refusal, the State Securities Commission shall reply in writing, and clearly
state the reason.
8. Within five (05) days after the date of
receipt of the notice of the State Securities Commission, the fund management
company discloses information on the establishment of the member fund as
provided for in Clause 4 of Article 3 of this Circular. Capital of the member
fund may only be disbursed after the notice of the State Securities Commission
was issued.
Article 22. Increase,
decrease of charter capital of member fund
1. The increase or decrease of the charter
capital of the member fund shall comply with the following provisions:
a) The fund charter providing for the increase
or decrease of charter capital;
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c) After the adjustment of capital is made, the
fund still meets the provisions of Clause 2, Article 21 of this Circular;
d) In case of increase of capital, the fund
management company must meet additional conditions as specified in point b
clause 2 of Article 4 of this Circular.
2. In the case of reduction of capital, assets
used to allocate to the members may be cash or other assets by the decision of
the general meeting of members of the fund. Fund management company, custodian
bank is responsible for allocating assets fairly correspond to the capital
contribution percentage of each member. The transfer of names, registration of
ownership of assets to the members, performance of tax obligations to the State
shall comply with the relevant provisions of law.
3. Member fund is increased capital by way of
raising additional capital from existing members, or raising additional capital
from the new members. Capital contributed additionally may be in cash or types
of securities listed or registered for trading at the Stock Exchange. The
capital contribution with securities must ensure:
a) Limited partners are not limited to transfer
for assets expected to be put into the fund provided that they are not the
assets used to secure under pledge, mortgage, escrow, deposit, frozen or in the
other security asset transactions in accordance with the provisions of the
civil law;
b) Assets included in the fund must meet the
provisions of the fund charter, in conformity with the investment objective and
investment policy of the fund; they are not the assets included in the fund's
portfolio, but about to be liquidated or divested; they are not securities
paused, temporarily suspended from trading and delisted or securities of the
issuers in a state of liquidation, dissolution or bankruptcy;
c) The contribution of capital by assets must be
approved by all members of the fund, and is considered to be completed after
the legal ownership to the assets used to contribute capital has been
transferred to the fund. The transfer of ownership is done under the guidance
of the Securities Depository Center;
d) The valuation of assets used to contribute
capital must be consistent with the provisions of the fund Charter and other
provisions of law, if relevant. Value of assets included in the fund shall be
determined on the basis of the price of the day-end at the date of completion
of the transfer procedures of ownership at the Securities Depository Center.
4. Within seven (07) days after the completion
of the capital increase or reduction of the fund, the fund management company
must notify the State Securities Commission on the increase or reduction of
capital of the fund as follows:
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b) Minutes of the meeting and the resolutions of
the general meeting of members on the increase or reduction of capital and
other relevant documents;
c) Fund charter amendment; depository contract
amended and supplemented (if any);
d) Minutes of the capital contribution agreement
and a list of limited partners, amount of contributed capital, the percentage
of contributed capital ownership before and after the increase or decrease of
charter capital in the form specified in Appendix 12, issued together with this
Circular;
e) Written certification of the depository bank
on the additionally-contributed capital, list of assets contributed into the
fund. In case of capital contribution by securities, add written certification
of the Securities Depository Center on the transfer of securities portfolio of
the organizations to contribute capital to the fund, including the securities
depository account number of each organization, amount and type (code) stock,
date of transfer of ownership and portfolio accounting into depository account
of the fund. In case of reduction of capital: written certification of
depository bank, the Securities Depository Center (in case of asset allocation
as securities to members) on asset allocation for each member, which clearly
state the list of assets distributed to the member.
5. Dossier specified in Clause 4 of this Article
shall be made into an (01) ordinary set together with an electronic data file.
The original set is sent in person to the State Securities Commission or sent
by post.
6. Within five (05) days from the date of
receiving complete and valid dossier as prescribed in Clause 4 of this Article,
the State Securities Commission notifies in writing to confirm the increase or
decrease of capital of the member fund. In case of refusal, the State
Securities Commission shall reply in writing, clearly state the reason. The
increased capital of the member fund is disbursed only after having
confirmation of the capital increase made by the State Securities Commission.
Article 23. Consolidation
or merger of the member fund
1. Member fund is consolidated, merged with another
member fund according to decision of the general meeting of members. The fund
established after the consolidation or merger has number of the members not
exceeding thirty (30) members. Date of consolidation, merger is the date that
the general meeting of members adopts the decision on the consolidation or
merger.
2. Within five (05) days from the date of
consolidation or merger, fund management company must submit dossier of
notification of consolidation, merger of member fund, including the following
documents:
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b) Minutes of the meeting and the resolutions of
the general meeting of members on the consolidation, merger, together with plan
for consolidation or merger which clearly states the principles and methods of
determining the liability, assets and net asset value at the date of
consolidation or merger;
c) Details of the portfolio, total asset value,
total liabilities and net asset value at the date of consolidation or merger; conversion
rate of fund certificate at the date of the consolidation or merger; liquidity
ratio per fund certificate (if any);
d) The value of the loans repaid at the request
of creditors (if any);
đ) In the case of consolidating the funds,
additional materials include the consolidated fund charter, contract of asset
depository of the consolidated fund.
3. Dossier specified in Clause 2 of this Article
shall be made in an (01) original set together with an electronic data file.
The original set is sent in person to the State Securities Commission or sent
by post.
4. Within five (05) days from the date of
receiving complete and valid dossier as prescribed in Clause 2 of this Article,
the State Securities Commission shall send a written notice confirming the consolidation,
merger of the funds . In case of refusal, the State Securities Commission shall
reply in writing, clearly state the reason.
5. Since the date of consolidation, merger of
the funds, the consolidating, merger receiving fund inherits the rights and
obligations of the mergered, consolidated funds under the provisions of Clause
4 of Article 17 of this Circular.
6. Within seven (07) days from the date of
notification of the State Securities Commission confirming the consolidation,
merger of the funds, fund management company discloses information on the
completion of the consolidation, merger under the provisions of Clause 4 of
Article 3 of this Circular.
Article 24. Extension of
the operation duration, dissolution of the member funds
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2. In a period of at least fifteen (15) days
before expiration of the fund’s operation duration, fund management company
reports the State Securities Commission on the extension of the operation
duration of the member fund. Report dossier on the extension of the operation
duration of the fund includes the following documents:
a) The documents specified in Clause 2, Article
18 of this Circular;
b) A list of members of the fund in the form
prescribed in Appendix 12 attached herewith and documents of the new members
(if any) as specified in point đ Clause 3, Article 21 of this Circular.
3. Dossier, order and procedures for extension
of operation duration of the member fund shall comply with the provisions of
Clause 3 and 4 of Article 18 of this Circular.
4. The dissolution of the member fund is made by
fund management company, depository bank, general meeting of members in
accordance with the relevant provisions in Article 19 of this Circular. The
liquidation and distribution of assets, provision of information on liquidation
of assets for the investors shall follow the plan of dissolution adopted by the
general meeting of members. Order, procedures, records announcing the
dissolution and report on the process of liquidating assets to dissolve the
fund and report records on the completion of dissolution of the member fund
shall comply with the relevant provisions in Article 20 of this Circular,
together with the documents of depository bank and fund management company
clearly stating the payment details, the list of assets distributed to each
member and the written certification of the members of get enough money or
assets under the plan of dissolution adopted by the general meeting of members.
Article 25. Investment
activities of the member fund
1. Member fund is invested in the types of
assets defined in Clauses 2 and 3 of Article 9 of this Circular. The member
fund is contributed capital to establish joint-stock company, limited liability
company under the provisions of the law on enterprises. Where the fund charter
regulates and approved by the general meeting of members in writing, the member
fund is invested in the types of real estates satisfying the conditions to be
traded in accordance with the law on real estate business.
2. Unless the fund charter otherwise provided
for, the member fund is not required to comply with the relevant provisions of
Points a, b, c, d, Clause 4, Clause 5, Clause 6, Clause 7, Clause 8, Clause 9,
Clause 10 of Article 9 of this Circular.
3. In the activity of member fund management,
the fund management companies must ensure that:
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b) Do not use capital, assets of the fund to
provide loans, guarantee the loan of any third party; do not guarantee the
issuance of securities;
c) In cases of provided for by fund charter, the
funds are loaned with mortgage, overdrawn or other forms from the depository
banks, loan for buying securities (margin trading) in the following principles:
- The loan of assets must comply with the
provisions of law;
- The loan limit shall be decided by the general
meeting of members, but must ensure that the total debts and liabilities of the
fund does not exceed 30% of the total assets of the fund at any time;
- The credit department of the depository bank
must be completely separate from the organizational structure and operation
with the asset depository department of the fund; credit activity is
independent from depository operation and not subject to the regulation of
depository contract;
- The fund management company must provide
information on the rights of the depository bank and the possibility of
conflict of interests for the general meeting of members to consider and
decide;
d) Fund management fees, award fees (if any) paid
to the fund management company, fees paid to depository bank and other service
charges should be provided for in details in the fund charter, in accordance
with the provisions of law.
4. Fund management company shall make and
archive registers of limited partners and all information related to the
transfer of contributed capital between the members. Depository bank may
provide services to make and archive registers of limited partners on the basis
of service providing contracts signed with the fund management company.
5. Fund management company identifies, or
authorizes depository bank monthly to determine the net asset value of the
member fund and the net asset value per fund certificate. In case of
authorizing depository bank to determine the net asset value, the fund
management company must check regularly, monitor to ensure that the activities
of determining the net asset value is consistent with the provisions of law,
provisions of fund charter and the net asset value is calculated correctly.
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7. The distribution of income of the member fund
shall comply with the provisions of Article 11 of this Circular.
Article 26. Regulations on
members, representative board of the fund
1. The rights and obligations of participants in
the Board of Representatives of the member fund shall comply with the
provisions of the fund charter, in conformity with the relevant provisions of
Articles 12, 13 and 14 of this Circular. Where the fund Charter does not
require, structure of the Board of Representatives of the member fund is not
subject to the provisions of Clause 5 of Article 15 of this Circular. Other
provisions of the members of Board of Representatives of the fund and Board of
Representatives of the fund shall comply with Article 15 of this Circular.
2. Limited partners are free to transfer their
contributed capital in the fund. The transfer of part or all of the contributed
capital in the fund must:
a) The transferee satisfies the relevant
provisions of Clause 2, Article 3 of this Circular;
b) After the transfer is made, the fund still
meets the conditions specified in Clause 2, Article 21 of this Circular.
3. Within fifteen (15) days from the date of
completion of the transaction, the fund management company notifies the State
Securities Commission on the transfer of the contributed capital among the
members of the fund as follows:
a) Notification on transfer of the contributed
capital among the members, which clearly state the information on the parties
to the transaction, quantity of fund certificates and percentage of ownership
of the parties (before and after the transaction); transaction value;
b) Transfer contract between the members of the
fund certified by the fund management company
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CUSTODIAN BANKS,
DEPOSITORY BANKS
Article 27. The general
provisions on custodian bank
1. Custodian bank selected by the fund
management company must meet the conditions specified in Clause 1, Article 98
of the Law on Securities.
2. Custodian bank must be completely independent
and separate from the fund management company that the bank provides custodian
services.
3. Members of the Management Board, members of
the Executive Board and employees of the custodian bank who directly do the
preservation of the fund’s assets and monitor the asset management activities
of the fund management company (hereinafter referred to professional staffs)
are not the persons relating or participating in the management, administration
of fund management company or having ownership relationship, capital
contribution, share holding, borrowing or lending with the fund management
company that custodian bank provides supervision service and vice versa.
4. Custodian banks, members of the Management
Board, members of the Executive Board and professional staffs are not partners
of purchase and sale of the transactions of purchase and sale of assets of the
fund, except for foreign exchange transactions accordance with the provisions
of the relevant law, the securities transactions made through the trading
system of the Stock Exchange.
5. If there are the matters arising that the
bank no longer meets the conditions specified in Clauses 1, 2 and 3 of this
Article, within two-four (24) hours from the arising time the bank must notify
the fund management company and the State Securities Commission.
6. To monitor the operation of the fund, the
custodian bank must have at least two (02) employees having the following
certificates:
a) Certificate of the securities law;
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c) Accounting certificate, or chief accountant
certificate, or audit certificate, or obtained international certificates in
the field of accounting, auditing ACCA (Association of Chartered Certified
Accountants), CPA (Certified Public Accountants), CA (Chartered Accountants),
ACA (Associate Chartered Accountants).
7. Within ten (10) days from the effective date
of the supervision contract, custodian bank is obliged to report and send to
the State Securities Commission:
a) supervision contract;
b) Written provision of information together
with a valid copy of professional certificates in accordance with provisions of
Clause 6 of this Article of the professional staff designated supervision,
preservation of the fund’s assets by the custodian bank;
c) Commitment of custodian bank and the
professional staffs of the custodian bank for meeting the provisions of Clauses
1, 2 and 3 of this Article.
8. Report records of custodian bank specified in
Clause 7 of this Article shall be made into an (01) original set together with
an electronic data file. The original set is sent in person to the State
Securities Commission or sent by post.
9. Within seven (07) days after receiving
complete and valid dossier as prescribed in Clause 7 of this Article, the State
Securities Commission sends a written certification on reporting records of
custodian bank and professional staff designated to supervise activities of the
fund by the custodian bank.
Article 28. Operation of
the depository bank, custodian bank
1. Depository bank, custodian bank is selected
foreign financial institution with asset depository function to be auxiliary
depository institution to deposit assets in foreign countries of the fund
invested in accordance with law provisions. Depository authorization activity
must comply with the following provisions:
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b) Depository authorization activity must be
made on the basis of a contract between depository bank, custodian bank and
auxiliary depository institution. The contract must clearly define the rights,
obligations and responsibilities between the depository bank, custodian bank
and auxiliary depository institution. Auxiliary depository institution shall
only comply with order or legal instruction of the depository bank, custodian
bank;
c) The deposited assets must be clearly
identified as assets of the fund that the depository bank, custodian bank
provides services;
d) Depository bank, custodian bank is
responsible for inspecting, supervising the activities of the auxiliary
depository institution as well as bearing all costs incurred relating to the
authorization to perform asset supervision, depository activities of the fund;
đ) Foreign auxiliary depository institution has
the right to re-deposit assets in the securities depository organization of
which they are members, according to the regulations of the home country.
Fund's assets must be registered ownership by auxiliary depository institution
of the fund in accordance with provisions of relevant laws;
e) Depository bank, custodian bank must have
full information on all assets owned by the fund, including the type, quantity,
place of depository, asset storage and documents certifying ownership of the
fund's assets. Depository bank, custodian bank is responsible for ensuring the
fund's assets to be registered ownership of the fund, deposited to always be
able to identify, confirm that the assets are owned by the fund.
2. Responsibility of the depository bank,
custodian bank in the depository activity of assets of the fund:
a) To require the fund management company to
register fund's assets under the name of the fund in the earliest time
according to the economic terms and conditions of the contract between the fund
(through a fund management company) and partners and accordance with the
provisions of the relevant legislation; to ensure all assets of the fund
arising in the territory of Vietnam must be registered ownership of the fund
and make full depository in the depository bank, custodian bank in the
following principles:
- Where the assets registered ownership, then
register, record under the name of the owner as the fund, unless the assets
must be registered, recorded under the name of the depository bank, custodian
bank or the auxiliary depository institution or fund management company under
the relevant provisions of the law, at the same time, deposit at the depository
bank, custodian bank. Original legal documents certifying ownership of assets
must be deposited and sent full treasury at the depository bank, custodian
bank, unless the securities are registered, made centralized depository. Where
the assets are real estate, depository bank, custodian bank must ensure full
legal documentation of ownership, use rights as prescribed. Where securities
are issued in book-entry form, or the transfer of ownership of the fund has not
been completed, the original contract of sale and purchase and buying payment
transactions must be deposited at a depository bank, custodian bank;
Where the assets are not registered ownership,
or have not been timely transfered ownership to the fund within the time limit
prescribed in the issuance agreements, assignment contract, investment contract
or equivalent economic contracts, depository bank, custodian bank shall clearly
confirm the status of depository and registration of assets in the periodic
reports prepared in accordance with the relevant provisions of Clause 1,
Article 32, Clause 1 Article 33 of this Circular, at the same time send a
written notice to the representative board of the fund.
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- Where they are bank deposits, the depository
bank, custodian bank has the right and responsibility for requiring fund
management company to provide full information on the deposit contracts, the
deposit accounts of the fund. Depository bank, custodian bank is responsible
for monthly cross-check of the balance of deposit accounts, the value of the
deposit contracts with the banks receiving deposits of the fund;
b) Separate management and depository from
assets of each fund; separate from assets of the funds with assets of
depository bank, custodian bank and separate from the assets of the other
customers of the depository bank, custodian bank. Each fund is opened a
separate securities depository account, separate from the securities depository
accounts of the other individuals and organizations, including of the fund
management company;
c) The fund management company is representative
authorized to make transactions of the fund's assets. The transfer of the
fund's assets in investment activities, investment divestment is made only by
written directive of the fund management company in accordance with the
provisions of the depository contract, supervision contract;
d) The payment of transactions of securities
listed, registered for transaction must comply with the principle of delivery
of securities at the same time with payment and rules of offset, payment in
accordance with the law provisions. The payment of other asset transactions
must comply with the orders and lawful directives of the fund management
company and other provisions of law, if relevant. All money transfers, payment,
transfer of assets must comply with the trading partners of the fund, the fund's
accounts. The payment value must match the volume of assets, the transaction
price and the right amount stated in the payment vouchers;
đ) Perform properly, fully and promptly
according to orders, lawful directives of the fund management company; execute
fully and promptly the rights and obligations related to the ownership of the
fund's assets, including the procedures for payment and settlement of tax to
the fund;
e) Verify the reports on the assets of the fund
established by the fund management company, to ensure that the volume of assets
in the report is true, complete and accurate to the real status of assets
deposited in the banks;
g) Participate and provide full information at
the meetings of general meeting of investors of the securities investment fund,
general meeting of members of the fund, the meetings of the Board of
Representative of the fund, but without voting right.
3. Fund's assets in the material or immaterial
form, registered ownership in the fund’s name or not (in the case assets are unregistered
ownership in accordance with the law provisions), are deposited in depository
bank, custodian bank and auxiliary depository organization (if any), are the
assets owned by the fund, not the assets of the depository bank, custodian bank
or fund management company. Depository bank, custodian bank may not use the
assets of the fund to pay or guarantee payment for its debts or for third
parties, including for fund management company.
4. The transactions for the fund on account of
depository bank, custodian bank, including activities receiving money,
transaction payment, receiving dividends, bond interest and other income, must
be determined clearly as belong to the fund. Where the transactions on the
account or in the name of the auxiliary depository organization under the
relevant law, these transactions and assets in the transaction must be clearly
determined clearly as belong to the fund, through the custodian bank.
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a) Having accounting books to record complete,
full assets of the fund. All changes related to assets must also be reflected
fully, accurately and timely;
b) Having revenues, expenditures, accounting of
dividends, bond interest, capital gains and other income;
c) Accounting securities, fund certificate in
the transactions of acquisition, additional issuance or conversion;
d) Implementing book entry, payment for
expenses;
đ) Receiving and making book-entry to record securities
account from the additional issuance, restructuring the issuer and other
related adjustment activities.
6. Depository bank, custodian bank is
responsible for full compensation for the fund in the event of loss of the
assets of the fund deposited and sent to the store of the bank in accordance
with the law, including the cases of error or fraud of the bank's employees, or
due to negligence, careless of the bank.
7. Depository bank, custodian bank is
responsible for full compensation for the fund in case the auxiliary depository
organization causes loss to the fund's assets, except:
a) Under unforeseen circumstances, beyond the
control of the depository bank, custodian bank, which was clearly stated on the
indemnity to the depository bank, custodian bank under the relevant terms and
conditions in the depository contract, supervision contract;
b) The auxiliary depository organization is
responsible for paying compensation to the fund and auxiliary depository
contract with terms to allow the fund management company on behalf of the fund
to require the auxiliary depository organization to pay compensation under the
contract;
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8. Where the depository bank provides
supervision service for the member fund, the depository bank makes reporting
obligations only to the limited partners in accordance with provisions of the
supervision contract, without obligation to report to the State Securities
Commission of the supervision activities specified in Article 29 of this
Circular.
Article 29. Closed fund
supervision activities of the custodian bank supervision
1. Supervision scope is limited only in the
activities of fund management companies related to the closed fund that the
bank performs supervision function.
2. Responsibility of the custodian bank in
investment supervision activities of the fund management company for the assets
of closed fund:
a) To coordinate with the fund management
company to periodically review internal processes in principle, the method of
determining the net asset value of the fund; supervise the determination of net
asset value; inspect to ensure that net asset value per fund certificate is
true, correct and in accordance with the provisions of law, the provisions of
the fund Charter;
b) To supervise the investment activity and
asset transactions of the fund, re-check to ensure type of invested asset,
portfolio structure if it is in accordance with the regulations on investment
restriction, loan restriction accordance with the law provisions and in the
fund charter; supervise the asset transactions between the fund and fund
management company and the concerned persons, to ensure compliance with the
provisions of the law and the fund charter;
In case of detecting signs of violation of the
provisions of law, the custodian bank shall report to the State Securities
Commission and notify the fund management company within twenty-four (24) hours
from the detection of the matter and require the fund management company to
take remedial measures, overcome the consequences arising within the prescribed
time limit;
c) To supervise the implementation, inspection
of results of consolidation, merger, dissolution and liquidation of its assets;
d) To supervise and ensure the legality and
payment only from the assets of the fund, the expenses in accordance with the
provisions of the law and the provisions of the fund charter;
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e) To confirm the reports on net asset value,
investment activity, investment portfolio of the fund established by the fund
management company.
3. Custodian bank is responsible for setting up
and storing records, documents under written form and electronic data file in a
period of ten (10) years to confirm compliance with the legal provisions of the
fund management company in the form prescribed in Appendix 15 attached
herewith. These documents must be provided upon written request of the State
Securities Commission.
4. When requested in writing by the fund
management company, the custodian bank is responsible for providing timely,
completely and accurately necessary information for the fund management
company, approved auditing organization for the organization to execute the
rights and perform obligations with respect to the fund in accordance with the
law, the fund charter.
5. The custodian bank may request the fund
management company promptly provide the necessary information and documentation
if relevant for the custodian bank to be able to execute the rights and perform
obligations to the fund in accordance with law. The custodian bank is
responsible for keep in secret in accordance with the law for all documents and
information received from the fund management company.
6. The custodian bank may provide service of
determining the fund's net asset value for the fund management company.
Department providing service of determining the net asset value at the
custodian bank must be separated from the departments of personnel, customer
electronic database system, department of performing the supervision function
and other business departments of the custodian bank. Department providing
service of determining the net asset value must have employees with certificate
of chief accountant or accounting or audit certificate or international
certificates in the field of accounting ACCA, CPA, CA, ACA.
7. Where the fund management company does not
carry out the operations to restore the fund within the time limit prescribed
in Clause 6, Clause 7, Article 9 of this Circular, the custodian bank shall
report to the State Securities Commission within seven (07) days from the date
of sending a notice to the fund management company by the custodian bank. In this
case, the custodian bank has the power only to make orders, directives and
legal transactions of the fund management company but not making the structure
of the fund's portfolio violate the provisions of law and other provisions in
the fund charter.
8. Where the fund management company must pay
damages to the fund, investors in accordance with provisions of Clause 8 of
Article 9 of this Circular and other relevant regulations, the custodian bank
must cooperate with the fund management company to conduct procedures for
making payments timely and adequately to the investors under the lawful
directives of the fund management company. The custodian bank, or associating
with the fund management company (depending on the supervision contract’s
content) is responsible for paying compensation for the fund in the event of
damages incurred from that the custodian bank does not perform fully and
promptly the responsibility to supervise the investment activities of the fund,
to determine the net asset value of the fund and other supervision activities
to the fund under the provisions of the law. The level of damage compensation
is made under the terms and conditions of the contract signed or agreement
between the fund management company and the custodian bank.
Article 30. Termination of
the rights and obligations of the depository bank, custodian bank for the fund
1. Depository bank, custodian bank terminates
its rights and obligations to the fund in the following cases:
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b) Unilateral termination of the depository
contract, supervision contract;
c) The fund expires its time of operation,
dissolved, consolidated or merged;
d) The decision of the general meeting of the
investors or the general meeting of the members of the fund.
2. In the cases specified in Clause 1 of this
Article, the rights and obligations to the fund of the depository bank,
custodian bank is transferred to the other depository bank, custodian bank as
stipulated in Article 31 from this Circular. The depository bank, custodian
bank terminates the contract only after they have completed the transfer of all
rights and obligations to the replacing bank.
3. Where the depository bank, custodian bank
converts its legal entity, the new bank inheriting all rights and obligations
for asset is made depository and supervision like the former bank.
Article 31. Change of the
depository bank, custodian bank
1. In case of changing the depository bank,
custodian bank, the fund management company is obliged to report the State Securities
Commission and propose a depository bank, custodian bank to replace together
with the following documents:
a) A written request for replacement of
custodian bank, depository bank co-signed by the fund management company and
depository bank, custodian bank; in which clearly states the reason for
replacement; together with the written commitment of depository bank, custodian
bank on the transfer of full rights and obligations with respect to the assets
of the fund to the replacing depository bank, custodian bank;
b) Minute of the meeting and decision of the
general meeting of the investors, the general meeting of members on changing
the depository bank, custodian bank, which clearly states depository bank,
custodian bank expected to replace; approving the plan to convert the assets
from the former depository bank, custodian bank to the replacing depository
bank, custodian bank;
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d) Amended charter;
đ) The plan of handing over the rights and
responsibilities of the banks, including a period of two banks making the
transfer and method to handle the issues of rights and obligations of the
concerned parties.
2. Dossier specified in Clause 1 of this Article
shall be made into an (01) original set of dossier together with the electronic
data file. The original set is sent in person to the State Securities
Commission or sent by post.
3. Within ten (10) days from the date of
receiving complete and valid dossier prescribed in Clause 1 of this Article,
the State Securities Commission adjusts the content of the change of custodian
bank, depository bank in the certificate of fund establishment registration or
notice of the report of the establishment of a member fund. In case of refusal,
the State Securities Commission shall reply in writing, clearly stating the
reason.
4. Rights and obligations to the fund of the
custodian bank, depository bank are terminated only at the time of completion
of the transfer of rights and obligations toward the fund to the replacing
custodian bank, depository bank. The replacing custodian bank, depository bank
shall establish and submit to the State Securities Commission the handover
minute between two custodian, depository banks certified by the fund management
company and the Representative Board of the fund.
5. Within ten (10) days from the date of
completion of the replacement of a depository bank, custodian bank specified in
Clause 3 of this Article, the fund management company shall disclose
information on the change of depository bank, custodian bank to the fund in
accordance with the relevant laws.
Chapter VI
REPORTING OBLIGATIONS
Article 32. Information to
the investors and the obligation to report on the operation of the fund
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a) Weekly report on the change of net asset
value of closed fund in the form;
b) Report on investment activity (including
information on assets) of the fund monthly, quarterly and annually in the form
prescribed in Appendix 17 attached herewith;
c) The prospectus, summary prospectus; audited
annual, semi-annual and quarterly financial statements.
2. The documents referred to in Clause 1 of this
Article shall be provided free of charge to the investors on electronic
information page of the fund management company, or e-mailed directly to the
investors or other forms provided for in the fund charter, prospectus.
3. The investors may refuse to receive the
documents specified in Clause 2 of this Article. Where the investors request,
the fund management company must provide the risk management process, stating
clearly the investment restrictions, methods of prevention and risk management
used to manage the fund's assets.
4. The deadline for submission of the reports:
a) For the monthly reports, is within five (05)
days after the end of the month;
b) For the quarterly reports, is within twenty
(20) days after the end of the quarter;
c) For the semi-annual reports, within thirty
(30) days after the end of the second quarter;
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5. In addition to the cases of report provided for
in this Article, in case of necessity, in order to protect the public interest
and the interests of the investors, the State Securities Commission may require
the fund management company to report on the fund’s operation.
6. The fund management companies must report to
the State Securities Commission, within forty-eight (48) hours from receipt of
the reporting requirements specified in Clause 5 of this Article.
7. The reports sent to the State Securities
Commission shall be accompanied by an electronic data file.
8. Within seven (07) days from the date of
amendment and supplement of the fund charter, prospectus update, the fund
management companies must report to the State Securities Commission,
accompanied by the fund charter, prospectus, and disclose the information
specified in Clause 4 of Article 3 of this Circular and provide to the
investors upon request.
Article 33. Reporting
obligations of the custodian bank, depository bank
1. The custodian bank shall prepare and submit
to the State Securities Commission the monthly, quarterly and annual
supervision reports on asset management activities of the fund made by the fund
management company under the form prescribed in Appendix 18 issued together
with this Circular. The supervision reports of the custodian bank must assess
the compliance with the provisions of law, the provisions of the fund Charter
as follows:
a) To assess the compliance of the fund
management company in the investment activity and transactions of the funds;
b) To assess the determination of the net asset
value of the fund, which details the cases of incorrect valuation of assets of
the fund (if any);
c) The issuance of fund certificates, capital
mobilization of the fund;
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2. The custodian bank is obliged to report the
State Securities Commission, within twenty-four (24) hours after the violation
has been detected in the following cases:
a) The fund management company violates the law on
securities and securities market;
b) Losses from asset management activities
caused by the fund management company are too big and the cost to remedy is too
high;
c) The other cases at the request of the State
Securities Commission.
Chapter VII
IMPLEMENTATION
PROVISIONS
Article 34. Effect
This Circular takes effect from March 15, 2013
and replaces the Decision No.45/2007/QD-BTC dated June 05, 2007 of the Minister
of Finance on promulgating the Regulation on the establishment and management
of the securities investment funds.
Article 35. Implementation
organization
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FOR THE MINISTER
DEPUTY MINISTER
Tran Xuan Ha
Appendix No. 03
FORM OF REQUEST FOR GRANT/ ADJUSTMENT OF CERTIFICATE OF REGISTRATION
FOR FUND ESTABLISHMENT
(Promulgated
together with the Circular No. 224/2012/TT-BTC of December 26, 2012 of the
Ministry of Finance guiding establishment and management of closed-end funds,
member funds)
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Independence–
Freedom – Happiness
-------------------------------------
....,
date ...... month .......year....
REQUEST
FOR GRANT/ ADJUSTMENT OF
CERTIFICATE
OF REGISTRATION FOR FUND ESTABLISHMENT
Respectfully
to: State Securities Commission
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- Name of company (full name, abbreviated name and English name):
- The permit of establishment and operation No.:
.... Issued by the State Securities Commission dated ……………
- Address of head office:
- Telephone: .... .........Fax:…….
To
request the State Securities Commission for grant/ adjustment of certificate of
registration for fund establishment with the following contents:
1. Name of investment fund (full name, abbreviated name and English
name):
2. Custodian Bank:
3. Certificate of registration for the public offer of fund certificates
(if any) number …. Issued by the State Securities Commission dated …………
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5. Quantity of fund certificates:
6. The charter capital of fund:
7. Par value of fund certificate:
In case of
request for adjustment of certificate of registration for fund establishment,
it is required to supplement:
8. Certificate of registration for fund establishment number …. Issued by
the State Securities Commission dated …………;
9. Quantity of the circulating fund certificates (before adjustment):
10. The charter capital of fund (before adjustment):
11. Quantity of fund certificates that are issued additionally:
12. The issuing price of a fund certificate unit:
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15. Quantity of the circulating fund certificates (after adjustment):
We
hereby undertake to be fully responsible
for the accuracy and truthfulness of the content of request and dossier of
registering for fund establishment / request for adjustment of
certificate of registration for fund establishment attached to this
documents.
Attached
documents
(fully
enumerated)
Director
(General Director) of fund management company
(signature,
full name and seal)
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Appendix No. 12
FORM OF MEMBER LIST
(Promulgated together with the Circular No. 224/2012/TT-BTC of December
26, 2012 of the Ministry of Finance guiding establishment and management of
closed-end funds, member funds)
I.
Form of member list of the Fund Representative
Board
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Full name
ID card/ passport number
Member type of the Fund Representative Board (independent/other)
Title
(Chairman, member)
Rate of owned fund certificates
Contact address, telephone, fax, email
Signature
1
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2
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II.
Form of list of members
contributed capital into the member fund
STT
Name of organization
(Sorting according to order of the owning rate decreasingly)
Information about members contributed capital
into fund
Value of contributed capital part
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Date of member register (or date of
adjusting the contributing capital scale)
Signature
Number of business registration, Date of issue,
place of issue, address of head office, telephone,fax
Transaction code (applicable to foreign organizations, if any)
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1
CCompany
A
rRepresentative of the
contributing capital of company is
MMr./Ms:
NNguyen van / thi B
TTitle
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We
hereby undertake to be fully responsible
for the accuracy and truthfulness of the contents above.
Attached
documents:
(fully
enumerated)
Director
(General Director) of the Fund Management Company
(signature,
full name and seal)
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The other appendices are not translated herein