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MINISTRY OF FINANCE
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom - Happiness
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No:.212/2012/TT-BTC
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Hanoi,
December 05, 2012
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CIRCULAR
GUIDING THE ESTABLISHMENT, ORGANIZATION AND OPERATION OF
FUND MANAGEMENT COMPANY
Pursuant to the Securities Law dated 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 Law on Enterprises dated
November 29, 2005;
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 of
November 27, 2008 of the Government defining the functions, tasks, powers and
organizational structure of the Ministry of Finance;
At the request of the Chairman of the State
Securities Commission;
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Chapter
I
GENERAL PROVISIONS
Article 1. Scope and
subjects of governing
1. This Circular provides for the establishment,
organization and operation of the fund management company and the activities of
the concerned organizations and individuals in the territory of the Socialist
Republic of Vietnam.
2. Except for the licensed fund management companies,
the other organizations may not receive capital or property entrusted to manage
the securities portfolio; may not raise capital and assets to establish, manage
securities investment fund in accordance with provisions of the Securities Law.
Article 2. Interpretation of
terms
In addition to the terms explained in the Decree
No.58/2012/ND-CP of 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, in
this Circular, the terms below are construed as follows:
1. Executive Board consists of Director
(General Director), Deputy Directors (Deputy General Director).
2. Valid copy means a copy certified in accordance
with law.
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4. Entrusting customer representatives
mean the chairman of the fund representative board, chairman of the Management
Board of securities investment company, the legal representative of property
entrusting organization authorized by general meeting of investors, the fund
representative board, the general meeting of shareholders of securities
investment company, the Management Board of securities investment company,
property entrusting organization authorized to perform its rights under the
provisions of the fund charter, charter of securities investment company,
investment management contract, the company charter and the provisions of law.
5. General meeting of investors consists
of all investors contributing capital to the fund, holding fund certificate, is
the highest decision-making body of the fund.
6. Entrusting customers mean the funds,
securities investment companies and the individuals and organizations
entrusting their capital, assets to the fund management company for management.
7. Personal record includes the written
provision of information in the form prescribed in Appendix 03 attached
herewith, a valid copy of identity card, passport or other lawful personal
identification.
8. Valid record means the record with full
documents under provisions of this Circular, with content declared fully in
accordance with the law.
9. Consolidation means the form that two or more
companies of the same type (called as consolidated companies) are merged into a
new company (called as consolidating company) by transferring all assets,
rights, obligations and legitimate interests to the consolidating company, and
ending the existence of the consolidated companies.
10. Employees of an organization mean the
ones who work under labor contracts for such organization in the entire
administrative time.
11. Fund administrator means the one who
practices fund management designated for management by the fund management
company to manage, administer the investment activities of the fund, securities
Investment Company.
12. The beneficiaries mean the organizations,
individuals not taking the name of the property owner, but having full
ownership of such property in accordance with the law.
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14. Entrusted assets mean the list of assets
including cash, securities and other assets of the entrusting customers.
15. Electronic information file means the
data file formatted in Word, Excel, for documents issued by the competent
authorities in PDF format.
16. Working capital means the difference
between current assets and current liabilities
Chapter II
ESTABLISHMENT,
ORGANIZATION OF FUND MANAGEMENT COMPANY
Section 1. ESTABLISHMENT OF
FUND MANAGEMENT COMPANY
Article 3. Conditions for
being granted permit of establishment and operation
1. Having head office and equipment meeting the
following conditions:
a) The right to use the company's head office
with a minimum period of one year from the complete and valid date of the
records to set up fund management company;
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2. Having Director (General Director), Deputy
Director (Deputy General Director) in charge of business (if any) to satisfy
the provisions of Clause 1 of Article 11 of this Circular and at least 05 years
of fund management practice certificates for professional staffs.
3. Having actually-contributed charter capital
at least equal to the legal capital as prescribed by law.
4. Structure of shareholders, limited partners
in the fund management company
a) With at least two (02) founding shareholders,
founding members to be organizations to meet the provisions of Clause 6 of this
Article, which must have at least one (01) organization to be commercial bank,
insurance company, securities company;
Where the fund management company is organized
in the form of one-member limited liability company, the owner must be a
commercial bank, insurance company, securities company;
b) The founding shareholders, founding members
to be organization must own at least 65% of the charter capital, which the
organizations are commercial banks, insurance companies, securities companies
must own at least 30% of the charter capital of the fund management company;
c) Shareholders, limited partners owning 10% or
more of the charter capital of the fund management company and the concerned
persons of the shareholders, limited partners may not own more than 5% of the
charter capital in another fund management company.
5. Conditions for individuals contributing
capital:
a) None of the cases not having the right to
establish and manage enterprises in Vietnam in accordance with the provisions
of law on enterprises;
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6. Conditions for the organizations contributing
capital:
a) Having the legal entity and not in a state of
consolidation, merger, division, separation, dissolution, bankruptcy; none of
the cases not having the right to establish and manage enterprises in Vietnam
in accordance with the provisions of law on enterprises;
b) Having a minimum operation period of five
(05) consecutive years preceding the year participating in capital contribution
to establish the fund management company. If it is commercial bank, insurance
company, securities company, it must have a minimum operation period of two
(02) consecutive years preceding the year participating in capital contribution
to establish the fund management company;
c) Having financial capacity to meet the
provisions of Clause 2, Article 4 of this Circular.
7. Conditions for foreign investors contributing
capital to establish or purchase to own up to 49% of the charter capital;
establish or purchase to own 100% of the charter capital of the fund management
company shall comply with the provisions of the Decree No.58/2012/ND-CP of July
20, 2012 of the Government detailing and guiding a number of Articles of the
Law on Securities and the Law Amending and Supplementing a Number of Articles
of the Law on Securities.
Article 4. Conditions on
financial capacity of shareholders, limited partners
1. Individuals may only use their own capital
and must demonstrate that they have enough ability to contribute capital in
Vietnam Dong or a freely convertible foreign currency in bank accounts. Minimum
value of money must be equal to the amount of capital to be expected to contribute
for the establishment of the fund management company and the time of
confirmation of the bank shall not exceed thirty (30) days to the complete and
valid date of the records.
2. Organizations are used only equity capital
and other valid, legal sources of capital as prescribed by law. The most recent
annual financial statement audited must not have exception and meet the
following criteria:
a) Having interest in two (02) consecutive years
preceding the year requesting for establishing a fund management company and
having no accumulated losses to the latest quarter to the time of filing
records to request for the establishment of a fund management company;
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c) Where the organizations contributing capital
are the commercial banks, insurance companies, securities companies, they are
not in a state of control, special control, temporary pause, suspension of
operations or other state of warning, at the same time must satisfy the
conditions to be participated in contributing capital, investment in accordance
with the provisions of specialized laws.
3. Shareholders, limited partners who are
individuals, foreign organizations must meet the conditions of financial
capacity stipulated in the Decree No.58/2012/ND-CP of July 20, 2012 of the
Government detailing and guiding the implementation of some Articles of the Law
on Securities and the Law amending and supplementing a number of Articles of
the Law on Securities and the provisions of Clauses 1 and 2 of this Article.
Article 5. Records
requesting for granting permit for the establishment and operation of fund
management company
1. Records requesting for granting permit for
the establishment and operation of fund management company include:
a) Application for granting permit for the
establishment and operation according to the form prescribed in Appendix 01
attached herewith;
b) Minute of meeting and Resolution of
shareholders, limited partners, or the owner's decision on the establishment of
a fund management company, including at least the following contents:
- Full name, trade name in Vietnamese, English,
abbreviated name of the company to be established; address of head office;
- Charter capital; lists of shareholders,
limited partners; number of shares, par value, value worth of shares and
percentage of ownership of each shareholder or capital contribution, percentage
of ownership of each contributing member;
- Ratifying the company's charter, business plan
and the representative completes the procedure for establishment of fund
management company;
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d) Contract in principle of leasing head office
or decision on handing over the premises, headquarter of the owner; accompanied
by documents certifying ownership or the right to use the head office of the
lessor or owner;
đ) The plan of operation, business in the first
three (03) years after granting permit for the establishment and operation with
the content in the form prescribed in Appendix 04 attached herewith, together
with the fund management process; process of asset allocation and portfolio
management; risk management processes for each type of fund, entrusting
customer and business activities of the company; internal control process and
set of professional ethics;
e) Documents proving financial capacity:
- For individuals: confirmation of the bank on
balance of VND or freely-convertible foreign currency in the individual's
account at the bank;
- For organizations: the latest annual financial
statement audited and the latest quarterly financial statement. For the
organizations of capital contribution to be the parent companies, the groups,
they must supplement the consolidated financial statement of the latest year
audited. For the organizations as commercial banks, insurance companies,
securities companies, they must supplement the periodic reports on the
financial safety norms, capital safety in accordance with the provisions of
specialized law in two latest ( 02) last year, up to the complete and valid
date of records, and document of the competent State management agency to
certify that the organization of capital contribution is not in a state of
control, special control or other warning state under the provisions of
specialized laws and to approve that this organization is allowed to contribute
capital to establish, purchase shares, capital contribution in the fund
management company, the value of contributed capital and the percentage allowed
to own;
g) A list in the form prescribed in Appendix 02
attached herewith and personal dossiers of shareholders, limited partners,
authorized representatives of shareholders, limited partners who are legal
entities; Management Board’s members or Council of Members, Supervisory Board
(if any), the internal audit department (if any), the Executive Board, the
internal control department, professional staffs to be expected of the fund
management company;
- For organizations contributing capital,
additional documents include: a valid copy of the license of establishment and
operation, business registration certificate or other equivalent documents, the
charter of company, minutes of meetings and resolutions of the general meeting
of shareholders, Council of members, or the minutes of the meeting and the
decision of the Management Board or Council of members or the decision of the
owner on the capital contribution to establish a fund management company in
accordance with the provisions of the charter of the company; written
authorization for the authorized representative;
- Criminal record issued shall not exceed six
(06) months, up to the date of application of: (i) the authorized
representative and the legal representative of the organization contributing
more than 10% of the charter capital in the fund management company; (ii) the
founding shareholders, founding members, individuals contributing more than 10%
of the charter capital in the fund management company; (iii) members of the
Management Board or Council of members or president of the fund management
company; (iv) members of the Executive Board, the supervisory board (if any),
the internal audit department (if any), head of the internal control department
and the professional staffs of the fund management company;
- A valid copy of fund management practicing
certificate or the international certificates certifying the Executive Board’s
members in charge of professional, professional staffs meeting those specified
at Point c, Clause 1, Article 11 of this Circular;
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2. In case shareholders, limited partners are
the foreign investors, the materials or documents issued by the competent State
management agencies of foreign countries must be legalized in consulate but not
more than six (06) months before the date of application. All other documents
of the foreign investors must be translated and certified into Vietnamese by
the organizations having translation function legally operating in Vietnam or
foreign countries.
3. Records as specified in Clauses 1 and 2 of
this Article shall be made in one (01) original set attached to a file of
electronic information. The original documents are sent directly to the State
Securities Commission or sent by post.
4. Within thirty (30) days from the date that
the State Securities Commission sends a written request, the shareholders,
limited partners, owner establishing the fund management company must
supplement, complete records according to provisions. Where it is necessary to
clarify issues related to records requesting for permit of establishment and
operation of the fund management company, the State Securities Commission may
request the representative of shareholders, founders, owner or the person
expected to be Director (General Director) of the fund management company to
explain in person or in writing. After the above time limit, if the
shareholders, limited partners, owner do not supplement or complete the full
records, the State Securities Commission may refuse to grant a permit of
establishment and operation.
Article 6. The order for
granting permit of establishment and operation
1. Within twenty (20) days from the date of
receiving complete and valid records as prescribed in Article 5 of this
Circular, the State Securities Commission sends written notice to
representative of shareholders, members of capital contribution, owner of the
fund management company to complete the conditions of material facilities and
freezing of contributed capital. Shareholders, limited partners, owner are used
capital for investment in material facilities. The remaining contributed
capital must be frozen on commercial bank’s account as designated by the State
Securities Commission and must be released and transferred to the account of
the fund management company immediately after the permit of establishment
operation is effective.
2. The State Securities Commission inspects
material facilities, head office of the fund management company before granting
a permit of establishment and operation.
3. After a period of three (03) months from the
date of receipt of the notice of the State Securities Commission under the
provisions of Clause 1 of this Article, if the shareholders, limited partners,
the owner do not complete the material facilities, do not freeze capital and do
not supplement fully staffs in accordance with provisions, the State Securities
Commission may refuse to grant permit.
4. Within seven (07) days from the date of
receipt of confirmation of the capital frozen, and the minute of inspecting
material facilities and other valid documents as provided for in Article 5 of
this Circular, the Securities Commission State grants permit of establishment
and operation for the fund management company. In case of refusal, the State
Securities Commission shall send written reply, clearly stating the reason.
5. Within seven (07) days from the effective
date of permit of establishment and operation, the fund management company
shall publish the permit of establishment and operation according to the
provisions of Article 66 of the Law on Securities.
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1. Name of fund management company, branches and
representative offices of the fund management company must comply with the
provisions of the law on enterprises and must have the phrase "fund
management".
2. Company charter is set up in accordance with
the company's organizational model, with content in the form prescribed in
Appendix 11 attached herewith. In case of specified in the charter, the
Executive Board of fund management company is revised grammatical errors,
spelling or grammatical errors in the charter that do not affect the content of
the charter and must not consult shareholders' general meeting, Council of
members or owner. After the amendment, supplement is made; the Executive Board
must notify the shareholders, limited partners or owner of the amendment and
supplement.
3. Fund management companies shall comply with
the principles of corporate governance set out in the company charter. Fund
Management Companies who are public companies must also comply with other
provisions of the securities laws of corporate governance applicable to the
public companies.
4. Percentage of ownership of the founding
shareholders, founding members must meet the provisions of Clause 4 of Article
3 of this Circular within three (03) years from the date of issuance of permit
of establishment and operation. Founding shareholders, founding members are not
transferred their shares or contributed capital within three (03) years from
the date of issuance of permit of establishment and operation, except for the
transfer to other founding shareholders, founding members. Where the founding
shareholders, founding members are forced to liquidate their assets by a
decision of the court or of the competent state management agency, they shall
be transferred to other shareholders, members and the shareholders, members
receiving transfer shall automatically become the founding shareholders,
founding members of the company.
Section 2. ORGANIZATIONAL
STRUCTURE OF FUND MANAGEMENT COMPANY
Article 8. Management Board,
Council of members, Board of Supervisory
1. Organizational structure, conditions,
appointment, dismissal or removal, and the rights, obligations and duties of
Management Board, Council of members, chairman of the Management Board,
chairman of the Council of members, president of the company, the supervisory
board (if any), the internal audit department (if any), the Executive Board
shall be defined by the company charter in accordance with the provisions of
the law on corporate governance applicable to the public companies, the
provisions of the law on enterprises and not contrary to the provisions of this
Circular.
2. Members of the Management Board or Council of
members of the fund management company may not be members of the Management
Board or Council of members, Executive Board, fund management practitioners of
another fund management company or members of the Management Board or Council
of members, Executive Board, staffs of the depository banks, supervisory banks
providing services to the fund, securities investment company that the company
is managing.
Article 9. Internal Audit
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2. Internal audit department is under the
Management Board or Council of members or owner of the company.
3. Internal audit department shall:
a) Examine and evaluate the organizational
structure, corporate governance activities, operating activities, coordination
of each department, each working position in order to prevent conflicts of
interest, protect rights of customers;
b) Examine and evaluate the adequacy,
effectiveness and efficiency, the level of compliance with the provisions of
law, the provisions of the charter of the company; the internal control system;
internal policies, procedures, including the rules of professional ethics,
professional process, risk management procedures and system, information
technology system, accounting, process and system of report, disclosure of
information, the process of receiving and handling denunciations and complaints
from customers, and other internal regulations;
c) Check the validity, legality, honesty, the
level of prudence, compliance with professional processes and risk management;
d) Audit the entire operations of all
departments of the fund management company at least once a year;
đ) Propose the complete solutions to enhance the
effectiveness and performance of the company; monitor the implementation of
recommendations after the audit has been approved by the Council of members,
president of the company.
4. Internal audit activity must satisfy the
following principles:
a) Independence: the internal audit department
and the operation of this department is independent with the departments and
other activities of the fund management company, not subject to the management
of the Executive Board of the fund management company;
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c) Honesty: internal audit must be done in an
honest, careful and responsible manner;
d) Coordination: internal audit department is
allowed full, unrestricted access to information and documents of the company.
Member of the Executive Board and all employees of the fund management company
are responsible for coordinating, providing fully, timely, honestly, exactly
all information, relevant documents, as required by the internal audit
department. The Departments of the company shall inform the internal audit
department as discovering the weaknesses and shortcomings, mistakes, risk or
large losses on assets of the company or of the customers;
đ) Confidentality: The internal audit
department, staffs of the internal audit department are not disclosed the
information obtained during the audit, unless otherwise provided for the State
Securities Commission.
5. Personnel, personnel structure of the
internal audit department must meet the following conditions:
a) Having full civil act capacity and legal
capacity, other than those serving prison penalty terms or prohibited to
practice by a court;
b) Not being sanctioned from level of fines or
more for the violations of law in the field of securities, banking, insurance,
within two (02) years, up to the time of appointment;
c) Meeting those specified at Point c, Clause 1,
Article 11 of this Circular; or having securities trading, practicing
certificates; or having certificates of basic issues of securities and
securities markets or legal certificate of securities and securities markets;
d) Not at the same time working in other
departments of the fund management company;
đ) Having at least one staff who has auditor
practicing certificate, or international certificate of accounting and auditing
as ACCA (Association of Chartered Certified Accountants), CPA (certified public
accountants), CA (Chartered Accountants) , ACA (Associate Chartered
Accountants); or took test and satisfied a number of subjects of the curriculum
of training for auditor practicing certificate including economic law; finance;
currency and credit; auditing; accounting; analysis of financial activities in
accordance with relevant laws; or who has a working period of three (03) years
or more in the legal department, department of inspection, management and
supervision of the activities of the financial organizations in the state
management agencies in the field of finance, banking, insurance, securities,
state audit.
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a) Notice of the appointment, dismissal, change
of internal audit staff;
b) Minutes of meetings and resolutions of the
Management Board or Council of members or decision of the president of the
company on the appointment, dismissal, change of the internal audit
department’s staffs;
c) A list together with the personal dossier,
criminal record (for new employees) issued for a period of (06) six months from
the date of appointment and valid documents to prove employees and personnel
structure of the internal audit department to meet the relevant provisions of
Clause 5 of this Article.
7. Within ninety (90) days after the end of the
fiscal year, the fund management company must send the report of internal audit
and internal control report as provided for in Clause 5 of Article 10 of this
Circular to the State Securities Commission. Internal audit report must state
clearly opinions, conclusions of the audit department, basis of the audit
opinion; the explanation of the audit object; remedies, handling of violation
and completion.
Article 10. Internal
control
1. Fund management companies mut set up internal
control system in accordance with the company's organizational structure,
establish the internal control department under the Executive Board and
promulgate the regulations on internal control including policies, regulations,
professional processes and other internal regulations. Internal control
department is responsible for:
a) Monitoring to ensure the activities of each
position, and department and of the entire company in the compliance with the
laws, policies, professional processes, internal regulations of the company;
monitoring the implementation of responsibility of every employee in the
company for the activities assigned, decentralized, authorized in the following
principles:
- Mechanism of decentralization, authorization
must be clear, specific and transparent to ensure separation of duties and
powers from the individuals, departments of the company. The professional
processes must ensure separation between the functions and duties of each
position, department in the company from the analysis, appraisal, acceptance or
approval, or decision on implementation, implementation organization, report
and monitoring after the investment;
- An individual is not allowed to be in charge
of many positions that he/she can perform the activities, professional skills
with conflicted or overlapped purposes, interests. Personnel is arranged to
ensure that an independent can not independently make his/her own decision and
perform two or more activities in the entire professional process from
investment analysis, evaluation and approval of investment , investment
decision, transactions and investment, reporting transaction results,
management and investment monitoring after the transaction without consulting
other departments and individuals;
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c) Participating in the building of process,
implementation organization of the risk management for the activities of the
company and for each entrusting customer; timely identifying, evaluating the
risk level, setting up the investment limit and taking measures to prevent and
manage potential risks in the investment activities of the company and of
entrusting customers;
d) Monitoring to ensure the portfolio's net
asset value, fund certificates to be valued in accordance with the provisions
of law and internal regulations; assets and resources of the company to be
managed safely, effectively; customer’s assets are managed separately, independently;
financial report, operational report, report on financial safety norms and
other reports of the company to be made honestly, correctly, timely, fully
updated in accordance with the law;
đ) Monitoring and ensuring the financial
information system and managing truthfully, completely, timely and accurately;
having backup information system to promptly handle the situations such as
natural disasters, fires, explosions.... to maintain continuous operation of
the company;
e) Proposing the plan for handling dispute
settlement, conflict of interest, complaints from customers and partners;
contingency plans to overcome the consequences when problems occur;
g) Performing the internal audit function in the
case a fund management company is not required to establish internal audit
department under the provisions of Clause 1 of Article 9 of this Circular.
2. Personnel structure in the internal control
department must meet the following conditions:
a) Having at least one staff meeting those
specified at Point đ, Clause 5 of Article 9 of this Circular; or having
professional skill, knowledge of accounting, auditing from university degree or
higher and the actual working time of accounting or auditing at least 01 (one)
year;
b) Having at least one staff with professional
skill, knowledge of law from university degree or higher and the actual working
time of law at least 01 (one) year;
c) Head of internal control department must meet
those specified at Point a or b of this Clause and other conditions specified
in Clause 3 of this Article.
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a) Meeting those specified at Points a, b and c,
Clause 5 of Article 9 of this Circular;
b) Having working experience for at least two
(02) years in the professional departments of the securities trading
organizations, or credit institutions or insurance companies, or in the state
management agencies countries in the field of finance, banking, insurance,
securities, state audit;
c) They are not the relevant persons of members
of the Executive Board and not allowed to concurrently work in the professional
departments directly related to the securities business licensed.
4. Within seven (07) days from the date of the
change of the internal control staffs, fund management company shall send
notice to the State Securities Commission, together with the decision of the
Director (General Director), list and personal dossiers, criminal records (for
new employees) to be issued for a period of (06) six months from the date of
appointment to ensure staff and structure of the internal control department to
meet those specified in Clauses 2 and 3 of this Article.
5. Within ninety (90) days from the end of the
fiscal year, the fund management company must establish internal control report
and send to the State Securities Commission. The report must specify the
potential risks in the company's operations, entrusting customers’ asset
management activities and the activities of inspection and supervision in each
unit, each department and professional activity to be licensed.
Article 11. The
organizational structure
1. Director (General Director), Deputy Director
(Deputy General Director) in charge of business, the fund administering persons
must satisfy the following conditions:
a) Meeting the provisions at Point a, b Clause
5, Article 9 of this Circular;
b) Having at least five (05) years of experience
working at the professional departments of the organizations in the field of
finance, banking, insurance or departments of finance, accounting, investment
in the other enterprises;
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- Certificate of asset management practice in
the countries that are members of the organization of economic cooperation and
development (OECD); or
- Taken test and obtained international
certificate of second level CFA investment analysis (Chartered Financial
Analyst Level II), or CIIA level II (Certified International Investment Analyst
- Final level);
d) Up to the time of appointment, to be the
securities business practicers who have not ever violated those specified at
Point b, Clause 1, Article 80 of the Law on Securities;
đ) Not concurrently being employees of the other
economic organizations and complying with the provisions of responsibility of
securities practicer in Article 81 of the Law on Securities.
2. Fund management companies must dismiss,
remove the relevant titles for a period of twenty-four (24) hours right after
these individuals no longer meet the provisions in point đ, Clause 1 of this
Article, point a Clause 5 Article 9 of this Circular or violate those specified
at Point b, Clause 1, Article 80 of the Law on Securities.
3. Except for being appointed as the
representatives for contributed capital or appointed as the Management Board’s
members, Council of members, supervisory board of the organizations owning the
fund management companies, organizations receiving investment capital from the
fund management companies; securities practitioners in the fund management
companies are not:
a) At the same time working for other
organizations having ownership relation with the fund management company where
they work. This provision shall not apply in the case the securities
practitioners are appointed to join in the Executive Board, the management
board of the organizations receiving investment capital from investment funds,
securities investment company that the fund management companies are managing;
b) At the same time working for other securities
companies, fund management companies;
c) At the same time working as Director (General
Director) of an organization offering securities to the public or listing
organizations.
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1. Fund management companies meeting the
provisions at Points c and d, Clause 1, Article 13 of this Circular are
proposed for establishment of representative offices. Representative office is
not done the business, not performed asset management for the entrusting
customers, investment advisory, and is not signed economic contracts related to
securities business operations. In case of being authorized in writing by the
parent company, representative office is signed office lease contract,
contracts with employees and other economic contracts unrelated to the
securities business. Scope of operation of representative offices includes the
following contents:
a) Performing the functions of office for
communications and market research;
b) Promoting development of cooperation projects
in the field of securities and securities market of the company;
c) Promoting and monitoring the implementation
of the contracts signed between the company with other organizations and
individuals.
2. Records for approval to establish a
representative office includes the following documents:
a) Written approval for the establishment of a
representative office in the form prescribed in Appendix 05 attached herewith;
b) Minute of the meeting and the resolution of
the general meeting of shareholders or the Management Board, or Council of
members, or the owner's decision on the establishment of a representative
office in accordance with the provisions of the charter of the company;
c) The list attached to the personal dossiers of
the office representative’s staffs;
d) Contract or contract in principle renting
office or decision on handing over the premises, the head office of the owner;
accompanied by documents certifying ownership, the right to use the office of
the lessor or owner.
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4. Within fifteen (15) days from the date of
receiving complete and valid records as prescribed in Clause 2 of this Article,
the State Securities Commission makes a decision on approval for establishing a
representative office. In case of refusal, the State Securities Commission
shall reply in writing, clearly stating the reason.
5. Records requesting for closing representative
office include the following documents:
a) A written request for closing representative
office in the form prescribed in Appendix 05 attached herewith;
b) Minute of the meeting and the resolution of
the general meeting of shareholders or the Management Board, or Council of
members, or the owner's decision on the closing of representative office in
accordance with the provisions of the charter of the company.
6. Records in accordance with provisions in Clause
5 of this Article shall be made in one (01) original set attached a file of
electronic information. The original set is sent directly to the State
Securities Commission or sent by post.
7. Within fifteen (15) days from the date of
receiving complete and valid records as prescribed in Clause 5 of this Article,
the State Securities Commission approves in principle for closing
representative office. In case of refusal, the State Securities Commission
shall reply in writing, clearly stating the reason.
8. After obtaining the written approval in
principle of closing representative office, the fund management company must
disclose information and inform customers on the closure of representative
office for a period of at least fifteen (15) days for customers, partners to
take plan to handle the valid economic contracts.
9. After completing the closure of
representative office, fund management company reports and sends the following
documents to the State Securities Commission:
a) The original decision on approval of
establishment of the representative office;
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c) Certificate issued by the competent authority
for returning the stamp;
d) Documents certifying the fund management
company to disclose information of the closure of representative office.
10. Within ten (10) days from the date of
receiving complete and valid records as prescribed in Clause 9 of this Article,
the State Securities Commission makes a decision to terminate operation of
representative office and announces this decision on the electronic information
page of the State Securities Commission.
11. Representative office of fund management
company shall be revoked the decision on approval of establishment in the
following cases:
a) The fund management company is dissolved,
bankrupted or withdrawn permit of establishment and operation;
b) The application for approval of the
establishment of representative office with false information;
c) Operation with improper purpose, not in
accordance with the content of the decision on approval of establishment of
representative office.
12. Within fifteen (15) days from the date of
receipt of written notice of the State Securities Commission of the withdrawal
of the decision on approval of establishment of representative office in
accordance with the provisions of Clause 11 of this Article, the fund
management company shall close the representative office and report to the
State Securities Commission in accordance with provisions in Clause 9 of this
Article.
Article 13. Branch
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a) Having office, equipment to meet the
conditions in Clause 1 of Article 3 of this Circular;
b) Branch Director must meet the provisions of
Clause 1 of Article 11 of this Circular and has at least two (02) professional
staffs with fund management practicing certificates at office of the branch.
Personnel in branch are not allowed to work concurently at the head office or
other branches of the fund management company;
c) The fund management company must not be in a
state of control, special control, temporary pause, suspension of operation,
dissolution, consolidation, merger, transformation of company form or
performing the procedures of withdrawal of permits as prescribed; not be in
those specified in Clause 9 of Article 22 of this Circular;
d) The fund management company shall not be
sanctioned for administrative violations in the field of securities and
securities markets within six (06) months.
2. Records requesting for approval to establish
a branch include:
a) An application for approval to establish a
branch in the form prescribed in Appendix 05 attached herewith;
b) Minute of the meeting and the resolutions of
the general meeting of shareholders and the Management Board, or Council of
members, or the owner's decision on the registration of establishment of branch
c) Contract or Contract in principle of leasing
branch’s head office or decision on handing over the premises, branch’s head
office of the owner; accompanied by documents certifying ownership or the right
to use the head office of the lessor or owner; an explanation of material
facility of branch’s head office expected to be established.
d) A List of securities practitioners expected
to work in the branch together with the the personal dossier, criminal record
issued for a period of not more than (06) six months from the date of
submission for approval to establish a branch and a valid copy of fund
management practicing certificate of Director, Deputy Director of the branch in
charge of the operation (if any) and professional staffs.
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4. Records as provided for in Clause 2 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
5. Within fifteen (15) days from the date of
receiving complete and valid records as prescribed in Clause 2 of this Article,
and the minute of the inspection of head office of the branch expected to be
established, the State Securities Commission makes a decision on approval for
establishing the branch of the fund management company. In case of refusal, the
State Securities Commission shall reply in writing, clearly stating the reason.
6. Branch of the fund management company must
officially operate within six (06) months from the effective date of approval
of the establishment of the branch.
7. Records requesting for closing domestic
branches include:
a) A written request for closure of a branch in
the form prescribed in Appendix 05 attached herewith;
b) Minute of the meeting and the resolutions of
the general meeting of shareholders and the Management Board, or Council of
members, or the owner's decision on the closure of the branch;
c) Plan for dealing with economic contracts that
are still valid, including the labor contracts.
8. Records as provided for in Clause 7 of this
Article shall be made in one (01) original set attached a file of electronic information.
The original set is sent in person to the State Securities Commission or sent
by post.
9. Within fifteen (15) days from the date of
receiving complete and valid records as prescribed in Clause 7 of this Article,
the State Securities Commission approves in principle for closing branch. In
case of refusal, the State Securities Commission shall reply in writing,
clearly stating the reason.
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11. After completing the closure of the branch,
the fund management company reports and sends the following documents to the
State Securities Commission:
a) The original decision on approval of the
establishment of the branch;
b) Minutes of the liquidation of contracts and
documents to verify the branch has completed its obligations and
responsibilities for the concerned organizations and individuals;
c) Certificate issued by the competent authority
for returning the stamp;
d) Documents certifying the fund management
company disclosed information of the closure of the branch.
12. Within ten (10) days from the date of
receiving complete and valid records as stipulated in Clause 11 of this
Article, the State Securities Commission shall make decision to terminate the
operation of branch and announce this decision on the electronic information
page of the State Securities Commission.
13. Branch of the fund management company is
revoked the decision on approval of the establishment in the following cases:
a) The fund management company is dissolved,
bankrupted or withdrawn permit of establishment and operation;
b) The application for approval of the
establishment of branch with false information;
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d) Failure to meet the conditions of office,
equipment for securities business activities permitted; or failure to operate
within six (06) months from the date of being issued decision on approval of
establishment of branch.
14. Within a maximum period of fifteen (15) days
from the date of receipt of written notice of the State Securities Commission
of the withdrawal of the decision on approval of establishment of branch in
accordance with the provisions of Clause 13 of this Article, the fund
management company shall conduct procedures to close the branch and report to
the State Securities Commission in accordance with provisions in Clause 11 of
this Article.
Article 14. Change of the
company’s name, head office, branch’s office, representative office, legal
representative
1. Change of the company’s name, head office,
branch’s office, representative office of the fund management company must be
approved by the State Securities Commission.
2. Records requesting for approval of the
changes specified in Clause 1 of this Article shall include the following
documents:
a) Written request for approval of changes in
the form prescribed in Appendix 05 attached herewith;
b) Minute of the meeting and the resolutions of
the shareholders' general meeting, the Management Board or Council of members
or the decision of the owner of the fund management company of the change of
name of the company; head office, branch’s office, representative office in
accordance with the provisions of the charter of the company;
c) The charter amending, supplementing the
contents related to the changes mentioned above;
d) Contract in principle of leasing head office,
branch’s office or decision on handing over the premises, owner’s head office;
accompanied by documents certifying ownership or the right to use the head
office of the lessor or owner; and an explanation of material facility of head
office, branch’s office.
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4. Records as provided for in Clause 2 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
5. Within fifteen (15) days from the date of
receiving complete and valid records as prescribed in Clause 2 of this Article,
together with the minutes of the inspection of the material facilities (in case
of change of head office, branch’s office), the State Securities Commission
shall issue permit of adjusting the permit of establishment and operation,
adjusting the decision on approval of the establishment of head office,
branch’s office. In case of refusal, the State Securities Commission shall
reply in writing, clearly stating the reason.
6. Within seven (07) days from the date of the
change of the legal representative, the fund management company shall request
the State Securities Commission to amend the permit of establishment and
operation. Records include the following documents:
a) An Application for amending the permit of
establishment and operation according to the form prescribed in Appendix 05
attached herewith;
b) Minute of the meeting and the resolutions of
the shareholders' general meeting, the Management Board or Council of members
or the decision of the owner of the fund management company of the change of
legal representative in accordance with the provisions of the charter of the
company;
c) Personal dossier of the legal representative
newly appointed.
7. Records as provided for in Clause 6 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
8. Within five (5) working days from the date of
receiving complete and valid records as prescribed in Clause 6 of this Article,
the State Securities Commission shall issue permit of adjusting the permit of
establishment and operation. In case of refusal, the State Securities
Commission shall reply in writing, clearly stating the reason
Article 15. Temporary
pause, suspension of operation, withdrawal of permit of establishment and
operation of the fund management company
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a) Forced to temporarily pause operation due to
not fixed the state of special control under the provisions of the law on
financial safety norms and gross losses of less than fifty percent (50%) of
charter capital;
b) Temporarily pause voluntarily its operation,
provided that all economic contracts related to securities business were
liquidated.
2. Time limit for temporary pause of operation
is not more than two (02) years. Beyond this time limit, if the company does
not meet the provisions of the law on financial safety norms (in the case
specified in point a Clause 1 of this Article) or does not restore its
operation (in the case specified at Point b, Clause 1 of this Article), the
State Securities Commission shall revoke the permit of establishment and operation.
3. Within fifteen (15) days since the State
Securities Commission has sent a written request for temporary pause of
operation under the provisions of point a, Clause 1 of this Article, the fund
management company must complete the procedures for temporary pause of its
operation with the tax authority and other relevant agencies and disclose
information on the electronic information page of the fund management company,
the State Securities Commission and the stock exchange on the time of temporary
pause of its operation; comply with the provisions of Clause 11 of this Article
and carry out the procedures for handling the valid contracts as prescribed at
Point a, b, d, đ and e, Clause 14 of this Article.
4. The temporary pause of operation as
prescribed at Point b, Clause 1 of this Article must be registered with the
State Securities Commission. Registration records for temporary pause include:
a) A written registration for temporary pause of
operation in the form prescribed in Appendix 23 attached herewith;
b) Minute of the meeting and the resolutions of
the shareholders' general meeting, Council of members or the decision of the
owner on the ratification of the temporary pause of operation;
c) Minutes of the liquidation of the valid
contracts signed with the entrusting customers or other valid documents
certifying that the company has completed the transfer of rights and entrusted
asset management responsibilities to the replacing fund management company.
5. Records as provided for in Clause 4 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
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7. Fund management company shall report and send
to the State Securities Commission the documents of head office, material
facilities, professional staffs according to the relevant provisions of Point d
and g, Clause 1, Article 5 of this Circular to satisfy the provisions of Clause
1 and Clause 2, Article 3 of this Circular before the company restores its
operation.
8. Fund management company is suspended its
operation in the following cases:
a) Records requesting for grant, adjustment of
permit of establishment and operation with false information;
b) The fund management company can not fix the
status of special control after the time limit prescribed by law for the
financial safety norms and with gross losses reached fifty percent (50%) or
more of the charter capital, or no longer meet the conditions of capital for
the securities business;
c) Operation with improper purpose, not in
accordance with the securities business permitted;
d) Failing to maintain the conditions to grant
permit of establishment and operation under the provisions of Article 62 of the
Law on Securities;
đ) Depending on the nature and seriousness of
the violations specified in Clause 2, Article 119 of the Law on Securities; or
the violations of law that led to loss of entrusting customers’ assets without
remedies, compensation for trusting customers at the request of the competent
authority; or the violations of law provisions and failing to implement the
requirements of the competent State management agency and deliberately evading
or obstructing the sanction, failing to remedy the violations in accordance
with the law.
9. Time limit for suspension of operation is not
more than sixty (60) days (for cases specified at Point a, c, d, Clause 8 of
this Article) and not more than six (06) months (for cases specified at Point
b, Clause 8 of this Article). Time limit for suspension of operation for the
cases specified at Point đ, Clause 8 of this Article shall comply with the
provisions of the law on handling of administrative violations in the field of
securities and securities markets.
10. Within fifteen (15) days since the State
Securities Commission has made a decision to suspend operation, the fund
management company shall inform the customers of the suspension of its
operation; carry out the order and procedures for consulting investors’ general
meeting, the general meeting of shareholders of securities investment company,
the entrusting customers on the plan for handling funds, securities investment
company, the investment management contracts; consulting the replacing fund
management companies (if any).
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a) Do not sign new, renewable contracts of
investment management, investment advisory contracts and other economic
contracts with new customers, new partners; do not receive additional capital
from the current entrusting customers;
b) Do not raise capital to establish new fund, new
securities investment company; do not increase its charter capital to the fund,
securities investment company being managed;
For the valid investment management contracts,
the funds, securities investment companies operating, the fund management
company is made the transactions only after obtaining the written approval of
the entrusting customers or entrusting customers’ representatives (authorized
for each time). Entrusting customers are solely responsible for the
authorization to the fund management company to carry out these transactions.
c) Do not pay dividends, distribute profits; do
not transfer the unsecured debts into secured debts by its assets; do not
purchase treasury shares, acquire contributed capital; do not establish more
branches, representative offices, expand the area of operation, add
securities business; do not contribute capital, invest in subsidiaries, joint
ventures, associated companies; do not implement the business and investment
which need the approval of the State Securities Commission under the provisions
of law;
d) Comply with the provisions of the securities
law of the portfolio management, fund management, securities investment
companies; ensure the legitimate rights and interests of entrusting customers
and take entire responsibility for the entrusted asset transactions in
accordance with the law.
12. Fund management company is revoked permit of
establishment and operation in the following cases:
a) Failing to conduct the securities business
permitted for a period of twelve (12) months from the date of issuance of
permit of establishment and operation;
b) Failing to remedy the violations led to the
forced temporary pause, suspension of operation during the period of temporary
pause, suspension of the operation according to the provisions of Clause 2 and
Clause 9 of this Article;
c) The company is dissolved, bankrupted, or
consolidated or merged;
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13. Within thirty (30) days from the date of
being forced to revoke permit in accordance with the provisions of Clause 12 of
this Article, the State Securities Commission sends a written request to the
fund management company for terminating the permitted activities to conduct the
procedures of revoking permit of establishment and operation.
14. Since receiving the official dispatch of the
State Securities Commission, the fund management company is responsible for:
a) Within 24 hours, disclosing unusual
information on electronic information page at the places of business of the
fund management company, securities exchanges, securities depository center of
the revocation of permit of establishment and operation;
b) Completely terminating the securities
business permitted; not signing new, renewable economic contracts, unless it is
the contract which is intended to terminate the operation of the company;
c) Completely terminating the transaction and
management of assets, securities investment consultation under any form for
customers and partners;
d) Within fifteen (15) days, the fund management
company sends to the State Securities Commission a report on the following
contents:
- Detailed portfolio of each customer entrusting
the management of portfolio, certified by the depository bank in the form
prescribed in Appendix 08 attached herewith;
- Detailed portfolio of the funds, securities
investment companies that the company is managing, certified by the depository
bank, custodian bank;
đ) Within forty-five (45) days from the date of
receipt of the document of the State Securities Commission, the fund management
company is responsible for:
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- Performing final settlement of all portfolio
accounts (close or transfer); transfer the entire balance of cash and
securities to entrusting customers according to the behest of entrusting
customers;
- Performing plan of settlement ratified by
entrusting customers, investors’ general meeting of the fund, the general
meeting of shareholders of the Securities investment company; liquidating
contracts, handing over responsibilities to the replacing fund management
company or fund management company formed after the consolidation or merger;
- Organizing the general meeting of
shareholders, Council of members, consulting opinions of the owners on the plan
to dissolve or bankrupt the company;
e) Within sixty (60) days from the date of
receipt of the dispatch of the State Securities Commission, the fund management
company must report to the State Securities Commission of the settlement plans,
the completion of transfer of all rights and obligations of asset management to
the replacing fund management company and liquidation of the contract attached:
- Minute of the liquidation of contract with the
each entrusting customer; or contract for the transfer of rights and
obligations of portfolio management of entrusting customers to the replacing
fund management company (signed three parties between entrusting customer and
the fund management companies);
- Report on the handover of the rights,
responsibilities of fund management, securities investment company with
replacing fund management company in accordance with the law;
- Report on the plan for dealing with disputed
assets (if any) arising from the securities business permitted.
15. Within five (05) working days from the date
of receiving the report specified at Point e, Clause 14 of this Article, the
State Securities Commission sends a written request to the company, the
concerned parties to conduct procedures of dissolution or bankruptcy of the
company under the provisions of the law on enterprises, enterprise bankruptcy
law and the relevant provisions of this Circular.
16. Within seven (07) working days from the date
of completion of the dissolution or bankruptcy of the company, the legal
representative of the fund management company shall send the original permit of
establishment and operation of the fund management company and all records and
documents relating to the dissolution, bankruptcy of the company to the State
Securities Commission. Within seven (07) working days after receiving complete
and valid records, the State Securities Commission shall make a decision to
revoke the permit of establishment and operation.
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Article 16. The
transactions and the activities required to be approved by the State Securities
Commission
1. The transactions that change the following percentage
of ownership in the fund management company must be approved in writing by the
State Securities Commission, unless the fund management company is a public
company:
a) Transactions account for ten percent (10%) or
more of the charter capital; or
b) Transactions resulting ownership percentage
of shareholders, limited partners over or under the ownership levels of 10%,
25%, 50%, 75% of the charter capital of the management company.
2. Where the fund management company is a public
company, if the transfer resulting the transfer receiving party owns 25% or
more of the outstanding voting shares of the fund management company, the
transfer receiving party must comply with the provisions of the law on public
offer to buy shares of a public company.
3. The parties to the transactions as prescribed
in Clause 1 of this Article must through a fund management company send written
request to the State Securities Commission for approving the transactions,
including:
a) A written request for approval of the transaction
in the form prescribed in Appendix 05 attached herewith;
b) Contract in principles between the parties to
the transaction;
c) The relevant documents as prescribed at Point
e, g, Clause 1, Article 5 of this Circular, to ensure the transfer receiving party
to meet the conditions specified in Article 4 of this Circular.
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a) Being approved by shareholders' general
meeting, Council of members or owners for the establishment of representative
offices, branches, investment abroad;
b) Meeting the financial safety regulations
after deducting capital granted for the branch, cost for establishing
representative offices abroad, overseas investment capital;
c) Ensuring to maintain equity capital after
deducting capital granted for the branch, cost for establishing representative
offices abroad, overseas investment capital to be more than the legal capital.
5. Records requesting for approval to establish
a representative office, branch abroad or foreign investment of the fund
management company include the following documents:
a) A written request for approval of the oversea
establishment of representative office, branch or foreign investment in the
form prescribed in Appendix 05 attached herewith;
b) Minute of the meeting and the resolutions of
the general meeting of shareholders, and the Management Board or Council of
members, or the owner's decision on the establishment of oversea representative
office, branch, investment in foreign countries in accordance with the
provisions of the charter of the company;
c) The plan of operation, investment in foreign
countries, including estimated investment capital, investment capital source,
trading partners (if any), the field of investment, the content and scope of
operation, business plans and other relevant information in the first three
years.
6. Records as provided for in Clause 3 and
Clause 5 of this Article shall be made in one (01) original set attached a file
of electronic information. The original set is sent in person to the State
Securities Commission or sent by post.
7. Within seven (07) days from the date of
receiving the complete and valid records as provided for in Clauses 3 and 5 of
this Article, the State Securities Commission shall make decision on approving
the request of the fund management company. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reason.
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9. Within fifteen (15) days from the date of
being permitted the establishment of overseas representative office, branch or
being approved the foreign investment projects or agreed to permit the
termination of operation of representative office, branch by foreign competent
authority, the fund management company must notify the State Securities
Commission. Records of notice include the following information, documents:
a) Information on the headquarter, staffs of
representative office, branch, capital value together with the written approval
of the competent State management agency of Vietnam in the field of investment
and management of foreign exchange;
b) Documents, records submitted to the foreign
state management agency, together with a valid copy of the permit, the written
approval or equivalent documents issued by the competent authority in foreign
country.
10. Document in foreign language shall comply
with the provisions of Clause 2, Article 5 of this Circular.
Section 3. COMPANY
RESTRUCTURING
Article 17. General
provisions on consolidation or merger of the fund management company
1. Consolidation, merger must meet the following
principles:
a) The consolidation or merger; plan of
consolidation, merger, contract of consolidation, merger must be adopted by the
General Meeting of shareholders, Council of members, owner;
b) The rights, obligations are settled by
agreement between the concerned parties according to the voluntary principle in
accordance with the provisions of law;
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d) Information on the process of consolidation,
merger must be provided to shareholders, limited partners in a complete, timely
and accurate manner;
đ) Treasury stock of the merged, consolidated
company must be destroyed;
e) The fund management company formed after the
consolidation, merger must meet the conditions specified in Clauses 1, 2 and 3
of Article 3 of this Circular;
g) The consolidation or merger of the fund
management companies that are public companies must also comply with the
provisions of the relevant law (if any).
2. In the process of consolidation, merger, fund
management company, the Management Board or Council of members, supervisory
board (if any), the Executive Board shall:
a) Ensure the safety to the company's assets,
not hide, disperse assets of the company in any form and take responsibility
before law for the problems outside of the accounting book which were not be
handed over;
b) The fund management companies participating
in the consolidation, merger have the right and responsibility to all their
rights and obligations until the fund management company formed after the
consolidation, receiving merger is issued, modified permit of establishment and
operation;
c) Comply with the provisions of the law on the
disclosure of information on the stock market.
3. Shareholders opposed the consolidation,
merger may request the fund management company to acquire their shares. The
purchase price is under the agreement between the two parties on the basis of
the net asset value per share at the time of acquisition. Creditors may request
the fund management company to repay the loans when the consolidation or merger
is made. The above requirements shall be made in writing, clearly stating the
names and addresses of shareholders, limited partners, creditors, number of
shares, the value of contributed capital, loan value and should be sent to the
company within thirty (30) days from the date of adoption of the consolidation
or merger.
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Article 18. The order and
procedures for consolidation, merger
1. Fund management companies doing the
consolidation, merger must be approved by the State Securities Commission.
Records requesting for approval of consolidation, merger include:
a) A written request for consolidation or merger
in the form prescribed in Appendix 12 attached herewith;
b) Minutes and resolutions of the general
meeting of shareholders, Council of members or owners of the companies participating
in consolidation, merger;
c) Plan for consolidation, merger that has been
adopted by the general meeting of shareholders, Council of members or owners of
the companies participating in consolidation, merger including the contents in
the form prescribed in Appendix No.19, 20, issued together with this Circular;
d) Contract in principle of consolidation or
merger in the form prescribed in Appendix No.17, 18, issued together with this
Circular;
đ) Document from the competition management
agency of the consolidation or merger.
2. Records as specified in Clause 1 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
3. Within thirty (30) days after receipt of
complete and valid records as stipulated in Clause 1 of this Article, the State
Securities Commission shall make a decision on approving consolidation or
merger. In case of refusal, the State Securities Commission shall send a
written reply clearly stating the reason.
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5. After completing the consolidation, merger,
fund management company must file application to the State Securities
Commission for the permit of establishment and operation of the consolidated
company, modification of the permit of establishment and operation for the
merger receiving company. Records include the following documents:
a) An application in the form prescribed in
Appendix No.12 issued together with this Circular, together with the written
authorization of the companies participating in consolidation, merger to
authorized representative to perform the legal procedures related to the
consolidation or merger;
b) The originals of the permits of establishment
and operation of the consolidated, merged companies;
c) Report of the result of the consolidation or
merger in the form prescribed in Appendix 15 attached herewith;
d) The charter of the consolidated, merged
company;
đ) The opinion of the consultant (if any);
e) A List of shareholders, limited partners of
the company before and after the consolidation or merger in the form prescribed
in Appendix No.13 issued together with this Circular and the documents
specified at Point g, Clause 1 of Article 5 of this Circular.
6. Records as specified in Clause 5 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
7. Within thirty (30) days from the date of
receipt of complete records as prescribed in Clause 5 of this Article, the State
Securities Commission shall issue a permit of establishment and operation for
the consolidated company, modify the permit of establishment and operation for
the merger receiving company. In case of refusal, the State Securities
Commission shall reply in writing, clearly stating the reason. The effective
date of permit of establishment and operation, modification permit is the date
of consolidation or merger.
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9. After the date of consolidation, merger, the
companies participating in consolidation, merger shall have to hand over
immediately all rights and obligations to the fund management company formed
after the consolidation, merger. The fund management company formed after the
consolidation, merger inherits all rights and obligations of the fund
management companies participating in consolidation or merger.
Article 19. The order and
procedures for conversion of company type
1. Fund management company makes the conversion
of type of company must be approved by the State Securities Commission. Records
requesting for approval to convert type of company include:
a) A written request for approval of conversion
of the company type in the form specified in Appendix 12 attached herewith;
b) Minute of the meeting and resolutions of the
shareholders' general meeting, Council of members or the decision of the owner
on the conversion of the type of company and including the contents in
accordance with provisions of the enterprise law; method of conversion adopted
by the general meeting of shareholders, Council of members or owner;
c) The converted company's charter;
d) The original permit of establishment and
operation;
đ) Documents certifying to freeze the capital;
agreement of capital contribution (in case of additional issue, offer to new
shareholders, limited partners), the transfer contract (if available) and other
documents in accordance with provisions of the law on enterprises of the
conversion of company.
2. Records as specified in Clause 1 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
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4. Where the conversion associated with
individual stock offering, the offering of shares to the public or transactions
specified in Article 16 of this Circular; conditions, order and procedures
shall comply with the provisions of relevant law.
Article 20. General
provisions on the dissolution of the fund management company
1. Fund management company is dissolved in the
following cases:
a) Expiration of operation period stated in the
charter of the company without extension;
b) According to the decision of the general
meeting of shareholders, Council of members, owner of the company;
c) Permit of establishment and operation to be
revoked.
2. Fund management company may be dissolved only
when ensuring payment of all debts and other financial obligations.
3. Since being approved for dissolution by the
State Securities Commission, owner, Council of members, the Management Board
may not perform the activities that are prohibited by the provisions of the law
on enterprise dissolution, and directly organize the liquidation of assets of
the company, unless the company's charter provided for the establishment of separate
team of liquidation.
Article 21. The order of
dissolution or revocation of permit of establishment and operation of the fund
management company
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a) A written request for dissolution in the form
prescribed in Appendix 16 attached herewith;
b) Minute of the meeting and the resolutions of
the general meeting of shareholders, Council of members, or the owner's
decision on the dissolution;
c) Plan for dealing with the obligations arising
from the economic contracts, labor contracts, together with a list of the fund
management companies expected to replace. The plan includes the following basic
contents:
- The time and method of disclosing information,
informing customers, partners on the dissolution of the company; time to stop
the transactions, close the account balances of customers, partners, creditors;
- Duration, method and procedures for the
liquidation of the contracts, handover of power, responsibility for assets of
entrusting customers to the replacing fund management company, payment for the
debts;
- Duration and method of settlement of
complaints of customers, creditors, partners.
2. Records as specified in Clause 1 of this
Article shall be made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
3. Within fifteen (15) working days from the
date of receipt of the full and valid records under the provisions of Clause 1 of
this Article, the State Securities Commission approves for the dissolution of
the company. In case of refusal, the State Securities Commission shall reply in
writing, clearly stating the reason.
4. Within seven (07) days from the date of
approval of dissolution, the company must:
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b) Publicize the dissolution under the
provisions of the law on disclosure of information in the stock market.
5. The Company conducts procedures of
liquidation of valid economic contracts under the provisions of Clause 10 of
this Article; liquidation and distribution of assets to shareholders, limited
partners in accordance with the law on enterprise dissolution. Time limit for
handling the valid economic contracts should not exceed six (06) months from
the date of approval of the dissolution by the State Securities Commission.
Time limit for asset liquidation is made according to the dissolution plan
adopted by the general meeting of shareholders, Council of members or owner,
but not more than twelve (12) months.
6. Within seven (07) days from the date of
completion of the liquidation of assets, repay all the debts, divide assets to
shareholders, limited partners, the legal representative of the Company must
notify the State Securities Commission the performance accompanied by the
following documents:
a) Report on the liquidation of the assets of
the company, the repayment of debt and other financial obligations to the
creditors, those who have other rights and obligations, including financial
obligations to state, tax debts and arrears of social insurance. The report
must include a list of creditors and the debts paid; a list of shareholders,
limited partners, percentage of contributed capital and the amount, volume of
assets paid;
b) The report must be certified by the
depository bank, custodian bank and fund representative board, Management Board
of securities investment company, entrusting customers for the liquidation of
contract, together with the minute of the liquidation of the contract,
certified by the custodian bank, depository bank; materials on the dissolution
of the fund as prescribed by law for the establishment and management of
securities investment fund.
In case of handing over power, responsibility
and portfolio of funds, securities investment company, entrusting customers to
the replacing fund management company, the report must be accompanied by
documents of the handover of rights and obligations toward entrusting customers
to the replacing fund management company certified by the custodian bank, the
old and new depository bank;
c) A list of employees and benefits of employees
which have been resolved;
d) Written certification of tax agency regarding
the fulfillment of tax obligations; certificate of returning stamp of the
competent agency; original permit of establishment and operation of the company
and the permits of amendment, supplementation.
7. Report records of the liquidation result is
made in one (01) original set attached a file of electronic information. The
original set is sent in person to the State Securities Commission or sent by
post.
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9. Members of Management Board or Council of
members, supervisory board (if any), the Executive Board is responsible for the
truthfulness and accuracy of the dissolution records of the company. In case
dissolution records specified in Clauses 1 and 6 of this Article have incorrect
information, forged documents, the above individuals must jointly pay the
unpaid debts, the unpaid tax, and benefits of laborers unresolved and take
personal responsibility before law for the consequences arising within three
(03) years from the date of filing the statement of dissolution to the
Commission State securities.
10. In the process of dissolution, the
liquidation of contract, handover of the valid contracts to the replacing fund
management company must comply with the following principles:
a) For securities investment consultancy: the
fund management company liquidates the securities investment consulting
contracts for a period of six (06) months from the date of approval of the
dissolution;
b) For portfolio management:
- Within thirty (30) days from the date of
receiving the written approval of the dissolution of the State Securities
Commission, the fund management company shall have to return assets to the
customers upon request in writing; stop purchase/sale of securities; stop
withdrawal/deposit of customers’ money. Then close the balance of money and
asset of each entrusting customer;
- No later than five (05) working days from the
date of closing balance of entrusted assets, the fund management company must
report to the State Securities Commission of the portfolio of each customer;
notify and send portfolio account statement to each entrusting customer. The
entrusted portfolio account statement of each entrusting customer must be
certified by depository bank for the balance of cash and securities in the
entrusted portfolio in the depository bank. Notice to entrusting customer must
state the proposal of the replacing fund management company; guide the transfer
of assets and handover of rights and responsibility toward customers to the
replacing fund management company; or propose the liquidation of the portfolio;
or return assets to the customers for self-management;
- From the date of closing balance of cash,
securities of account of portfolio management, depository members do not make
order of transaction, instruct the payment of the fund management company for
the assets of customers, except for the liquidating transactions, transactions
in order to execute the ownership of the customers or the transactions as
required and instructed in writing by the customers;
After sixty (60) days from the date of receiving
the written approval of the dissolution of the State Securities Commission, if
the customers do not self-select a replacing fund management company or do not
require liquidation of the portfolio, the dissolved fund management company can
transfer the entire assets, money of customers to the entrusted portfolio depository
accounts of the replacing fund management company selected by the company.
c) For fund management:
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- The handover of the rights and obligations
with respect to fund, securities investment company to the replacing fund
management company shall comply with the provisions of point b this Clause and
Article 27 of this Circular.
d) The dissolved fund management company must
compensate damages to customers in case of money, assets of customers to be
lost in the process of dissolution of the company as stipulated in the fund
charter, the charter of securities investment company, portfolio management
contracts. In the absence of this provision, the customer has the rights as an
unsecured creditor. Compensation level must be made according to the same rate
as for other unsecured creditors;
đ) In the process of dissolution, fund
management companies continue to perform the obligations to report the activity
of portfolio management, fund management as prescribed in Article 32 of this
Circular and the provisions of law on the establishment and management of
securities investment funds, together with information on the progress of the
liquidation of the contract, returning of the assets to each entrusting
customer and the handover of rights and responsibilities to the replacing fund
management company.
11. While the company is conducting dissolution
procedures, individuals and organizations with related rights and interests have
the right to apply to a competent court to request for opening bankruptcy
proceedings against the company under the provisions of law on bankruptcy.
Article 22. Increase or
decrease adjustment to the charter capital of fund management company
1. The increase of the charter capital of the
fund management company shall comply with the law provisions on enterprises and
ensure:
a) To comply with the regulations on offering,
issuance of securities to the public; offering, individual issuance in the case
of capital increase by the way of offering or issuance;
b) To have sufficient funds to carry out from
undistributed after-tax profit on the latest financial statement audited or
examined, and the latest quarterly financial statement in the case of capital increase
by way of issuance of shares to pay dividends to current shareholders, issuance
of shares under optional program to employees;
c) To have sufficient funds to carry out from:
capital surplus, development and investment fund, undistributed after-tax
profit and other funds (if any) are used to supplement charter capital as
prescribed by the law on the latest financial statement audited or examined,
and the latest quarterly financial statement in case of issuance of shares to
raise capital from the equity capital;
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2. Before implementation of the capital
increase, the fund management company must report to the State Securities
Commission. Report records include:
a) A Notice of the increase of the charter
capital of the fund management company;
b) Minute of the meeting and the resolutions of
the general meeting of shareholders, Management Board or Council of members, or
the owner of the company on the capital increase;
c) Capital increase plan, including information
on the purpose of the capital increase, the capital increase form; scope of
increased capital; capital source to perform; percentage of shares, value of
contributed capital issued additionally or shares, value of shares issued for
new partners to contribute capital; expected time of implementation;
d) List of shareholders, limited partners
together with the relevant documents as prescribed at Point e, g, Clause 1,
Article 5 of this Circular to ensure shareholders and contributing members to
satisfy the provisions of point d, Clause 1 of this Article.
3. Records as provided for in Clause 2 of this
Article is made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
4. Within (07) days from the date of receipt of complete
and valid records according to provisions of Clause 2 of this Article, the
State Securities Commission sends a written reply on the capital increase of
the fund management company. In case of refusal, the State Securities
Commission shall reply in writing, clearly stating the reason.
5. Within seven (07) days from the date of
completion of the capital increase, the fund management company sends to the
State Securities Commission the report records of result of capital increase.
Report records include:
a) An Application for amending permit of
establishment and operation of the fund management company in the form
prescribed in Appendix 05 attached herewith;
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c) Certificate of freezing capital in commercial
bank as designated by the State Securities Commission (in the case of raising
capital from shareholders, limited partners);
d) Report on the ownership structure of the
company before and after the capital increase.
6. Records as provided for in Clause 5 of this
Article is made in one (01) original set attached a file of electronic
information. The original set is sent in person to the State Securities
Commission or sent by post.
7. Within (07) days from the date of receipt of
complete and valid records according to provisions of Clause 5 of this Article,
the State Securities Commission shall modify the permit of establishment and
operation for the fund management company. The modified permit must be stated
clearly the charter capital before the modification and the charter capital
after the modification of contributed-actually or spent- actually capital.
8. Within six (06) months from the audited date
of the annual financial statements, the fund management company must raise
capital when equity capital falls below the legal capital to ensure equity
capital shall not be lower than the legal capital.
9. In case of not meeting the provisions of
Clause 8 of this Article, the fund management company may not raise capital to
establish the funds, securities investment companies; increase charter capital
for closed fund, the member fund, securities investment companies being
managed; establish branches, representative offices, invest abroad, supplement
professional skill.
10. Fund Management Company that is a joint
stock company, limited liability company with two or more members is reduced
charter capital through the form of acquisition of shares and the contributed
capital from shareholders and members. Shares, the contributed capital of the
shareholders, members after the acquisition to reduce its charter capital must
be destroyed right after making the full payment to shareholders, limited
partners. Conditions, order, procedures, records of acquisition of shares,
contributed capital to reduce its charter capital shall comply with the
provisions of Article 23 of this Circular and the relevant provisions of the
law on the acquisition of treasury shares of the public company.
11. Within ten (10) days from the date of
completion of the acquisition of shares, contributed capital to reduce its
charter capital, the fund management company must send to the State Securities
Commission the report records of the result of the acquisition of shares,
contributed capital and propose amendments to the permit of establishment and
operation. Report records include:
a) An Application for amending the permit of
establishment and operation of the fund management company in the form
prescribed in Appendix 05 attached herewith;
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12. Records in accordance with the provisions of
Clause 11 of this Article shall be made in one (01) original set attached a
file of electronic information. The original set is sent in person to the State
Securities Commission or sent by post.
13. Within (07) days
from the date of receipt of complete and valid records according to provisions
of Clause 11 of this Article, the State Securities Commission shall modify the
permit of establishment and operation for the fund management company. The
modified permit must be stated clearly the charter capital before the
modification and the charter capital after the modification of
contributed-actually or spent- actually capital. In case of refusal, the State
Securities Commission shall reply in writing, clearly stating the reasons.
Article 23. Treasury shares
1. Fund management company organized in the form
of shareholding company is acquired not more than 30% of the total number of
common shares sold as treasury shares (hereinafter referred to as the purchase
of treasury shares). Treasury shares are not entitled to receive dividends, in
cash and shares; not entitled to priority in the batches of issuance of capital
increase, including issuance of capital increase from equity capital; not
entitled to voting.
2. Except acquisition of shares in accordance
with the provisions of Article 90 of the Law on Enterprises; acquisition of
fractional shares under the plan to issue shares to pay dividends, issue shares
from equity capital, the purchase of treasury shares of the fund management
company must meet the following conditions:
a) The decision adopted by the general meeting of
shareholders in case of acquisition of more than 10% of the total common shares
or more than 10% of the total number of dividends preferred shares issued; or
decision adopted by the Management Board in case of acquisition of not more
than 10% of the total number of common shares in every 12 months or not more
than 10% of the total dividends preferred shares issued in every 12 months.
Where the fund management company is a public
company, the purchase of treasury shares leading the number of treasury shares
obtained from 25% or more of the total outstanding shares, implement the public
purchasing offering in accordance securities law.
b) Based on the financial statement of latest
period audited or examined in accordance with provisions, having enough capital
to purchase treasury shares from the following sources: capital surplus or fund
of investment and development or undistributed after-tax profit, or other
sources of equity used to purchase treasury shares in accordance with the law
provisions.
Where the fund management company is a parent
company, the company must have sufficient capital under ownership and use of
the parent company on the consolidated financial statement audited or examined
in accordance with provisions;
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d) The rate of available capital after the
purchase of treasury shares is obtained at least 180% or more and equity
capital after the acquisition of treasury shares is not lower than the legal
capital.
3. Fund management company must report to the
State Securities Commission before making the purchase of treasury shares.
Report records include the following documents:
a) Notification of purchase of treasury shares,
which clearly states the purpose of the transaction, the execution time, the
number of treasury shares and the expected rate of treasury shares acquired,
made capital, defined principles price or exercise price;
b) Minutes of the meeting and the resolutions
adopted by the general meeting of shareholders in case of acquisition of more
than 10% of the total common shares or more than 10% of the total number of
dividends preferred shares issued; or the one adopted by the Management Board
in case of acquisition of not more than 10% of the total number of common
shares in every 12 months or not more than 10% of the total dividends preferred
shares issued in every 12 months.
c) The minute of the meeting and the resolution
of the Board of Directors adopting the purchase plan of treasury shares.
4. Records in accordance with provisions of
Clause 3 of this Article shall be made in one (01) original set attached a file
of electronic information. The original set is sent in person to the State
Securities Commission or sent by post.
5. Within seven (07) days from the date of
receipt of complete and valid records in accordance with provisions of Clause 3
of this Article, the State Securities Commission sends a written notice on the
receipt of full report records of the purchase of treasury shares in accordance
with the law provisions. In case of refusal, the State Securities Commission
shall reply in writing, clearly stating the reason.
6. Time limit for purchase of treasury shares
must not exceed thirty (30) days. Fund management company may not change and
must comply with treasury shares trading plan adopted by the general meeting of
shareholders, the Management Board. Where it can not be implemented, it must
consult opinions of the general meeting of shareholders, the Management Board.
Within ten (10) days from the date of completion of the purchase of treasury
shares, the fund management company notifies the State Securities Commission
the trading results, together with a list of shareholders selling shares to the
company, the number of shares sold in the form prescribed in Appendix 13
attached herewith and reports the financial safety norms after the purchase of
treasury shares.
7. Where the fund management company is a public
company, it must also comply with other relevant provisions of law on the
disclosure of information, the purchase of treasury shares.
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a) Being had overdue debt based on the latest period
financial statement, audited or examined;
b) Being in the process of selling offering of
shares to raise additional capital;
c) Companys shares are subject to public
purchasing offering;
d) Having made the purchase of treasury shares
within six (06) months, except as follows: acquisition of shares in accordance
with Article 90 of the Law on Enterprises, acquisition of fractional shares
under the plan of issuing shares to pay dividends, to issue shares from equity
capital;
đ) Purchase of treasury shares and the sale of
treasury shares in the same batch;
e) Failure to meet those specified at Point d,
Clause 2 of this Article, or in a state of alert in accordance with the
provisions of law on financial safety norms.
9. Unless the acquisition is done according to
the percentage of ownership of each shareholder or where the company makes the
public purchasing offering over the shares issued, the company may not purchase
treasury shares from the following subjects:
a) Members of the Management Board, supervisory
board (if any), the Executive Board and the concerned people;
b) People who own shares to be restricted
transfer in accordance with the law provisions and the charter of the fund
management company;
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The provisions of points a and c of this Clause
do not apply to the case that the fund management companies whose shares are
listed or registered for trading on the Stock Exchange acquire shares by
matching method.
10. Fund management company may purchase
treasury shares if they meet the following conditions:
a) Treasury shares is sold only after six (06)
months from the date of ending the batch of the latest purchase of treasury
shares, except for treasury shares are sold or used as bonus shares to
employees of the company;
b) Having decision adopted the plan of sale by
the Management Board, which clearly states the execution time, the principle of
determining value;
c) In case of sale of treasury shares in the form
of offering of securities to the public, the fund management company shall
comply with the provisions of the law on offering of securities to the public.
In case of sale of treasury shares having preference to the subjects defined in
points a and c of Clause 9 of this Article, it must be adopted by the general
meeting of shareholders, the above subjects may not participate in the voting.
11. The use of treasury shares to distribute
dividends to existing shareholders and bonuses for employees must be adopted by
the general meeting of shareholders and the fund management company must ensure
to have adequate counterpart funds from the equity capital based on the latest
period financial statement audited or examined from the following sources:
a) Capital surplus;
b) Development and investment fund;
c) Undistributed after-tax profit;
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Where the fund management company is the parent
company, the company must ensure to have sufficient capital under its ownership
and use on the consolidated financial statement audited.
12. The order and procedures for reporting the
sale of treasury shares, use of the treasury shares to distribute dividends to
existing shareholders and bonuses for employees shall comply with the
provisions of Clauses 3, 4, 5, 6 of this Article.
Chapter III
OPERATION OF FUND
MANAGEMENT COMPANY
Section 1. GENERAL PROVISIONS
Article 24. General
provisions on the responsibilities and obligations of fund management company
1. To comply with the provisions of law and the
charter of the fund management company. Implement the entrusted asset
management as stipulated in the fund charter, the charter of securities
investment company, investment management contract; to comply with the rules of
professional ethics, voluntariness, fairness, honesty and for entrusting
customers’ sack of the best interests.
2. Fund Management Company is the authorized
representative of entrusting customer, on behalf of the entrusting customer to
execute the ownership toward the assets of entrusting customers in an honest
and careful manner.
3. Except for open fund, the fund management
company is entitled to award fee in accordance with the provisions of the fund
charter, charter of securities investment company, investment management
contract. An award fee is ensured in compliance with the following principles:
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b) It must be calculated deduction, or not be
paid if the investment activities in the preceding years are lost and this loss
is not compensated.
4. When managing entrusted assets, the fund
management company must:
a) Sign custodian or depository contract with a
depository bank for member fund, individual securities investment company,
entrusted portfolio; sign custodian contract with the custodian bank for public
fund, public securities investment company; make depository for all assets
arising in the territory of Vietnam and store full, timely and accurate
information on data of ownership, the original legal documents verifying the
ownership of property in a depository bank, custodian bank;
In case of investing deposit to the entrusting
customers, fund management companies are only deposited in the banks in the
list approved by the entrusting customers; store the original or valid copy of
the contract of deposit, loan contract in the depository bank, custodian bank
for the institution to periodically cross-check with the bank of deposit;
In case of investment or capital contribution;
trading assets, shares, unlisted shares for entrusting customers; the fund
management companies must store the original contracts, the permit of
establishment and operation or business registration certificate (if any), the
book of shareholders or documents certifying the ownership of assets in the
depository bank, custodian bank for the institution to periodically cross-check
with the organizations receiving investment capital;
b) Develop a information system to manage
entrusting customers’ accounts in the company to ensure the principle of
management of independence and separation of assets to each entrusting
customer, separation of entrusted assets and assets of the company; adequate
and timely storage of accounting books, transaction documents and other
documents related to transactions and ownership of entrusting customers’
assets; sum up fully, accurately and timely information on each entrusting
customer’ s assets and place for depository, storage of assets;
c) Establish a mechanism of examination, regular
crosscheck of three parties to ensure the consistency of data of entrusted
assets on the system of accounts of entrusting customers managed in the
company, the depository system of assets of entrusting customers in the
depository bank, custodian bank with the issuers, the Securities Depository
Center, the organization managing the registrars of shareholders, project
owners, organizations receiving investment capital, banks of deposit. The fund
management companies shall establish a mechanism for the depository bank,
custodian bank to actively, directly cross-check with the above organizations
to inspect, monitor, sum up fully and accurately information of depository,
property registration and management of entrusted assets.
d) Invest entrusted assets in accordance with
the provisions of law, the provisions in the charter of fund, charter of
securities investment company and investment management contracts;
e) Assign at least two (02) fund managers to
manage each fund, each securities investment company. The fund managers
mentioned above must have practical experience in the asset management
activities for at least two (02) years and have not been sanctioned for
administrative violations in the field of securities and securities markets.
Information on qualifications and professional skill, experience managing
assets of the fund managers must be disclosed in the prospectus.
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a) Prioritize the allocation of transacted
assets for entrusting customers. The allocation of assets between the
entrusting customers must be fair according to the asset allocation process
consistently applied by the company. Asset allocation process must clearly
state the principles of performance, valuation method, volume of assets allocated
to each customer, to ensure compatibility with the investment objectives, level
of risk acceptance or the other criteria in accordance with the internal
regulations of the company and informed the entrusting customers. Where the
assets are bought or sold at different prices, the fund management companies
must use the weighted average price to allocate asset;
b) The asset allocation for the company itself
is made only after fully meeting the orders of asset transaction for the
entrusting customers. Where the fund management company knows internal
information, or knows that the orders of entrusted asset transaction may create
a major influence on the price of an asset, the fund management company may not
make transaction of the same type of such asset or disclose to a third party of
such asset transaction;
c) The distribution of asset must be informed to
the depository bank, custodian bank to carry out right in the day of the
transaction.
6. In the fund management, fund management companies
are responsible for ensuring:
a) To determine the net asset value of the
portfolio of entrusting customers; the net asset value on a fund certificate,
shares of securities investment company under the provisions of the law,
charter of fund, charter of securities investment company, investment
management contracts;
b) To make, store and update timely, completely
and accurately the registrars of investors, shareholders. Contents of the
registrars of investors, shareholders shall comply with the relevant provisions
of the law on the establishment and management of securities investment funds,
the provisions on the establishment, organization and operation of the
securities investment companies.
7. The fund management companies are authorized
the fund management activities. The authorization for the activities shall
comply with the provisions of Article 26 of this Circular and the provisions of
the fund charter, the charter of the securities investment companies.
8. Fund management companies are obliged to
provide timely, completely the necessary information on entrusting customers,
information on entrusted asset transactions, information on the place to make
depository of entrusted assets, other concerned information (if any) and create
all the necessary convenient conditions for the depository bank, custodian bank
at the request in writing of these organizations to fulfill the rights and
responsibilities to their entrusting customers in accordance with the law
provisions. At least once a (01) month, the fund management company is obliged
to compare the list of assets of each entrusting customer with the depository
bank, custodian bank.
9. Within fifteen (15) days from the date that
the custodian bank detects and informs the fund management company on entrusted
asset transactions contrary to the provisions or exceeding the competence of
the fund management company in accordance with law provisions, provisions in
the charter of fund, charter of securities investment company, investment
management contract, the fund management company must cancel the transactions,
or perform the transactions in order to restore the position for the entrusting
customers. The fund management company shall bear all costs incurred related to
the transactions and the losses (if any). In case the transactions generate
profit, all profits have to be accounted for entrusting customers.
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11. The fund management companies must build the
processes and establish organizational structure, risk management system in
accordance with the company's scale of operation, types of funds, securities
investment companies and customers which they are managing. Risk management
system should be based on the policy, risk management process built according
to international practice in accordance with market conditions in Vietnam to
ensure a full identification, to determine a potential scale of risk in the
company's activities, potential risk in the professional processes, the
company's system, potential risk in the portfolio of each entrusting customer.
Depending on the type of risk and level of complexity of invested assets and
requirements of entrusting customers, the companies must give an appropriate
level of risk. Details of the process and the risk management system shall
comply with the additional guidance of the State Securities Commission.
12. Fund management companies are responsible
for compensation for the losses caused to the entrusting customers due to the
employee's fault, malfunction or error of technical system and professional
process of the companies or because the fund management companies fail to
comply with its obligations under the provisions of law, the provisions of the
charter of fund, charter of securities investment company and investment
management contract. The compensation for the opened fund, opened fund
investors shall comply with the provisions of the law on the establishment and
management of opened fund and the agreement between the concerned parties. The
compensation for the closed fund, the member fund, securities investment
companies, other entrusting customers comply with the agreement between the two
concerned parties.
13. The fund management companies must purchase
professional liability insurance for their professional staffs (when
necessary), or set up a risk reserve fund as prescribed by law to compensate
for entrusting customers in the cases specified in Clause 12 of this Article.
14. The fund management companies shall conduct;
require the dealers, organizations providing related services to set up a
system and organize the implementation of processes to synthesize information,
identify customers accordance with the provisions of law on anti-money
laundering and the provisions of the law on brokerage and securities
transactions.
15. The fund management companies must ensure
the investment of assets of entrusting customers as individuals, foreign
organizations to comply with the regulations of law on foreign exchange
management, ownership percentage in the Vietnamese Enterprises at the time of
investment.
16. The use of entrusted assets mobilized in
Vietnam to invest in securities issued by the foreign institutions, issuers
subject to foreign law, securities issued in foreign countries and the other
assets abroad must comply with the provisions of the law on investment abroad,
foreign exchange management and the provisions of relevant law. This investment
is made only if the charter of fund, charter of securities investment company,
investment management contract has terms and conditions to allow
implementation. Before the implementation, the fund management companies must
be approved in writting by general meeting of investors, general meeting of
members, the general meeting of shareholders of securities investment company,
entrusting customers or entrusting customers’ representatives and the competent
state management authorities.
17. When making transactions of assets for
entrusting customers, fund management companies ensure that:
a) For the organizations to be public funds,
public securities investment company:
- The volume or value of the transactions during
the year through a securities company shall not exceed 50% of the total volume
or value of transactions in the year of the organization; and
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b) For other entrusting customers, the fund
management companies must comply with the provisions of point a of this Clause,
unless the company has provided full information on the benefits of the fund
management company with related securities company and entrusting customers to
have written consent to waive the application of the above provisions.
18. The fund management companies are
responsible for keeping secret of information of customer, information on asset
transactions, customers’ portfolio and other relevant information, except for
providing information to the Commission State Security and the competent State
management agencies on demand.
19. The fund management companies must:
a) Separate their headquarters, information
technology infrastructure with the other economic organizations. Where the
companies use information technology infrastructure of their parent companies,
subsidiaries or organizations who are the concerned one, it must use the
mechanism of decentralization and restriction of use to make sure that the
departments of the parent companies, subsidiaries or organizations who are the
concerned one can not access to the computer system, database of the company;
b) Separate database between the professional
departments of potential conflicts of interest in the company, including the
separation between the entrusted assets management department; department of
research, investment analysis and the investment implementing department.
Computer system and databases are decentralized to each individual, department,
consistent with the working position in accordance with the provisions on
internal control.
20. In business, fund management companies must
ensure:
a) Working capital for financial investment
activities must be from equity capital, not a loan in any form;
b) Do not loan, or transfer the company's
capital to relevant persons and other organizations and individuals in any
form, except for deposit at the credit institutions in accordance with the
banking law, investment in bonds issued under the provisions of law;
c) Economic contracts and transactions (if any)
between the company and shareholders, limited partners from 35% of charter
capital or more, members of the Management Board or Council of members, members
of the Executive Board, members of the Supervisory Board, staffs of the
internal audit department; related persons of the above subjects; are made only
after there are number of shareholders, limited partners representing 65% or
more of total remaining number of votes agree or owner agrees in writing;
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đ) Within thirty (30) days from the date of
completion of investment in the subsidiaries, joint ventures, associated
companies, fund management company shall inform the State securities Commission
of this portfolio in the form prescribed in Appendix 22 attached herewith;
e) Do not contribute capital to establish or purchase
shares or capital contribution in other fund management companies, securities
companies in Vietnam, except for the following cases:
- Consolidation or merger; or
- Buy to own or together with related persons
own not more than 5% of the outstanding shares of the fund management
companies, securities companies registered transactions, listed on the stock
exchange.
21. When managing investment capital of
securities investment companies, fund management companies must ensure:
a) To be subject to the supervision of the
general meeting of shareholders, Management Board of securities investment
company, custodian bank and take responsibility before the shareholders'
general meeting, Management Board of securities investment company on the
implementation of the rights and duties assigned, the provisions in the charter
of securities investment company, investment management contracts;
b) To set up a system, build a process and
implement the risk management in accordance with the investment policy and type
of investment asset and report to the General meeting of shareholders and
Management Board on the risk management;
c) To make investment decisions, withdraw the
daily investment capital of securities investment company that do not need to
have a decision of the Management Board of securities investment company,
shareholders' general meeting of securities investment company under the
provisions of the charter of the securities investment company and investment
management contract;
d) To implement the investment policies,
decisions of the general meeting of shareholders, Management Board of
securities investment company in accordance with provisions of the charter of
securities investment company; to carry out asset transactions within the limit
of investment, type of assets permitted investment, transaction volume and
transaction objects (if any) specified in the charter of the securities
investment company, the investment management contract;
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e) To sign the contracts in the name of
securities investment company under the competence specified in the charter of
the securities investment company and investment management contract;
g) To exercise the other powers and duties as
prescribed by law, the charter of the securities investment company, investment
management contract and the decision of the general meeting of shareholders,
the Management Board of the securities investment company.
22. In the activity of ownership report,
information disclosure on stock market transactions, the fund management
company is responsible for:
a) The fund management company, along with the
entrusting customers comply with the provisions of the law on ownership report
and information disclosure on the stock market applicable to related persons,
those who know internal information;
b) Obligation of ownership report, disclosure of
information arising from the time:
- Number of shares own by the fund management
company (if any) and the entrusting customers (if any) obtained 5% or more of
the total number of outstanding shares of an issuer, or
- Fund management company (if any) is the one
who knows internal information under the provisions of the securities law;
c) The contents of the ownership report,
disclosure of information, information disclosure method shall comply with the
provisions of the law on disclosure of information on the stock market;
d) Performing other duties on ownership report
and disclosure of information under the provisions of the law on disclosure of
information in the stock market. Where customers entrusting portfolio take the
ownership name for entrusted assets, the customers are responsible for the
obligations of ownership report, disclosure of information under the provisions
of law.
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Article 25. Restrictions on
the activities of the fund management company and the fund management company's
staffs
1. Fund management company may not raise and
manage member fund from thirty-one (31) or more limited partners.
2. Fund management company may not be a related
person of the custodian bank, depository bank of the fund, securities
investment company that the company is managing. Members of the Management
Board, or Council of Members, internal audit department’s staffs, supervisory
board (if any), the president of the company, the Executive Board and employees
of the fund management company may not work in the departments providing
services of depository, supervision, fund management at these banks, and vice
versa.
3. The related persons of fund management company
are traded public fund certificates, shares of securities investment company
that the company is managing only when the fund charter, charter of securities
investment company provided for allowing to do transactions. Unless the
transaction is in the public purchasing offerring or in the selling offerring,
issuance to the public, these transactions are carried out through the trading
system at the Stock Exchange (for the closed fund, the public securities
investment companies, real estate investment funds), or by the methods
specified in the regulations of the fund charter, prospectus (for opened fund).
4. Fund management companies, parent companies,
subsidiaries, joint ventures, associated companies, Members of the Management
Board, or Council of Members, supervisory board (if any), the Executive Board
and employees of the company are purchased the assets in the entrusted asset
portfolio or sold to the portfolio of entrusting customers that the company is
managing according to the following principles:
a) Transactions by matching method focused on
implementation through trading system in the Stock Exchange;
b) In case of being an agreement transaction or
traded assets are not securities listed or registered for trading on the Stock
Exchange, it must be approved in writing by the entrusting customers or
representatives of the entrusting customers to allow conducting transactions.
It must be shown the approval of the type traded assets, the method of
determining the price, fees, partners or criteria for determining trading
partners, the time to implement the transaction, the other conditions (if any).
5. All securities transactions made by members
of the Executive Board, employees of the fund management company must be
reported to the internal control department before and after the transaction.
Report on individual transactions must include information on the type (code)
of securities, the quantity and value of transactions, total transaction value,
the time to implement the transaction, method of implementation, number of
transaction account, Securities company where the transaction accounts are
opened. Report on individual transactions must be stored and centrally managed
at the department of internal control and provide for the State Securities
Commission upon request.
6. Members of the Management Board or Council of
members, Executive Board and employees of the fund management company are not
allowed to request, require or receive, in the name of the individual or in the
name of the company, any remuneration, profits or benefits, in addition to the
fees and charges clearly stated in the fund charter, the charter of the
securities investment company, investment management contract.
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a) They shall not use the assets of the fund,
securities investment company to invest in the other fund, securities
investment company managed by them;
b) They shall not use entrusted assets to invest
in public funds, other public securities investment companies managed by them,
or vice versa. This provision shall not apply in the case entrusting customers
are foreign individuals, organizations with 100% foreign capital and have
agreed to allow the implementation of the above transactions;
c) They shall not use assets of public funds,
public securities investment companies to invest in the fund management company
itself; shall not invest in the organizations as related persons of the fund
management company; shall not invest in the organizations that the members of
the Management Board or Council of members, members of the Executive Board, and
employees of the company are shareholders or members holding more than ten
percent (10%) of the charter capital;
Fund management company may use capital of the
member funds, individual securities investment company, assets of the
entrusting investors in the portfolio management to invest in the organizations
mentioned above in the case the fund charter, the charter of the individual
securities investment company, investment management contract, agreement of
capital contribution provides for allowing the fund management company to make
the investment with appropriate management fee;
d) They shall not use entrusting assets to lend
under any form, guarantee for the loans in any form or make payment for the
debt obligations of the fund management company, the concerned persons of the
fund management company, other organizations and individuals;
This provision shall not apply in the case of
lending in the form of investment of deposits in the credit institutions in
accordance with the provisions of banking law, or purchase of bonds issued,
bond transactions in accordance with the provisions of law; entrusting
customers to be foreign individuals, organizations with 100% foreign capital
and have agreed to allow the implementation of the above transactions;
đ) They shall not commit, ensure investment
results except for the investments in products with fixed-income; shall not sign
the contracts receiving entrustment to invest in bonds with an interest rate
not consistent with market and investment analysis result of the company
itself; directly or indirectly to offset a part or all of the losses of
entrusting customers caused by investment activities; shall not perform the
transactions to reduce the profits of an entrusting customer to increase the
profit of another entrusting customer; shall not enter into a contract, make
transaction with the illegitimate, unreasonable disadvantage terms.
8. Except as a result of consolidation or merger
of the issuer, the fund management company is used equity capital and capital
of entrusting customers only for purchasing and owning (excluding shares in the
porfolio of entrusting customers as porfolio swap fund) more than twenty-five
percent (25%) of the total number of outstanding shares of a public company if
meeting the following conditions:
a) To be approved in writing of the entrusting
customers or representatives of the entrusting customers of the public
purchasing offering, the purchasing offering price, the volume of assets
expected for purchasing offering, method to distribute assets after making the
purchasing offering;
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9. Fund management company is not authorized,
outsourced the organizations in the territory of Vietnam to provide securities
investment consultancy service, entrusted asset management service.
Article 26. Authorization
for operation
1. Other than the function as authorized
representative of entrusting customers, the fund management companies may:
a) authorize the depository bank, securities
depository center to implement the activities of fund management, transfer
agent in accordance with the law on the establishment and management of
securities investment funds; determine net asset value; manage registrars of
the investors, shareholders of securities investment company; exercise voting
right and ownership right of entrusting customers; authorize dealer to supply
public fund distribution service;
b) authorize the foreign organizations to
provide services of consultancy, management and custody of fund's asset
portfolio, the securities investment companies are invested abroad in
accordance with the provisions of law.
2. The authorization specified in Clause 1 of
this Article must ensure:
a) The authorization and principles of the
authorization must be specified in the charter of fund, charter of securities investment
company, investment management contract; basic information of the party
receiving authorization, scope of operation, functions and duties of the
parties receiving authorization must be published in the prospectus, provided
for the entrusting customers. General meeting of the fund's investors,
shareholders' general meeting of securities investment company, entrusting
customers have the right to request the fund management company to change the
organization receiving authorization if necessary;
b) The party receiving authorization must have
sufficient capacity, system, personnel and experience. For the authorization
provided for at Point b, Clause 1 of this Article, the overseas party receiving
authorization must register its opreration or is licensed for activity
receiving authorization and subject to supervision by supervision management
agency of financial services in the home country;
c) The department providing service of the party
receiving authorization must separate from the remaining parts of the party
receiving authorization for personnel organization, professional process
system, system of report and approval of the report;
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đ) The authorization for operation and the party
receiving authorization under the provisions of point a Clause 1 of this
Article must be clearly stated in the charter of fund, charter of securities
investment company and announced in the prospectus. The authorization for
operation and the party receiving authorization under the provisions of point b
Clause 1 of this Article must be approved in writing by the general meeting of
investors, the general meeting of shareholders of securities investment
company, entrusting customers.
3. For the activities authorized, the fund
management company is responsible for:
a) Before signing contract to use service of the
party receiving authorization, the fund management company must appraise and
make record to evaluate the capacity and material facilities to ensure the
party receiving authorization to be equipped material facilities, technical
solution, system security, backup system for disaster, backup system for hot,
professional process, internal control system, risk management, human resources
having experience and appropriate professional qualification to carry out the
authorized activities;
b) Regular inspection and supervision to ensure
the activities authorized to be carried out carefully, safely, consistent with
the provisions of law, the provisions in the charter of fund, charter of
securities investment company, investment management contract to ensure the
quality of service provided in accordance with the criteria and requirements of
the company and the entrusting customers (if any). The fund management company
is used independent consultant, services provided by the professional
organizations, other legal activities to carry out the responsibilities
specified in this point;
c) Maintaining personnel having the experience,
expertise, appropriate professional skill to monitor, identify and effectively
manage risks arising from the activities authorized;
d) Setting up a system, building a process to
ensure at all times, the fund management company, independent audit
organization, the State Securities Commission may access to the necessary
information to inspect, supervise authorizations, assess and manage the risks
arising from the authorizations;
đ) The authorization shall not reduce or change
the responsibilities of the fund management companies for entrusting customers.
The fund management companies must take full financial and legal responsibility
arising from the authorization, except for legal obligations, the fees that the
customers directly agree, make payment to the party receiving authorization on
the basis of investment management contract, supervision contract, depository
contract, the provisions of the fund charter, the charter of the securities
investment company and in accordance with the provisions of relevant laws. The
fund management company must ensure the continuity for the activities
authorized, do not interrupt and affect the investment and services to provide
for entrusting customers;
e) Providing adequately, timely and accurately
the related information to the party receiving authorization for such party to
be able to fully, timely implement all the rights, obligations and
responsibilities of the authorization;
g) Archiving fully, timely and accurately the
instructions, requirements, documents sent to the party receiving authorization
to carry out the authorization; authorization contract includes the minimum
contents in the form prescribed in Appendix No.21 issued together with this
Circular together with a record of evaluating the capacity and material
facilities. These documents must be provided to the State Securities Commission
as required;
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4. At least once a year, the fund management
company shall make a report evaluating the service quality of the authorization
with the following contents:
a) Expenses payable to the party receiving
authorization compared with total operating expenses, profits and income of the
fund, the securities investment company and entrusted porfolio;
b) The total cost payable to each party
receiving authorization, including costs for the authorization and expenses
payable to the other services provided by the party receiving authorization;
percentage of the total costs payable to each party receiving authorization
compared with the total costs of doing business in the year of the fund
management company;
c) The types of risks, the level of risk from
the authorization for entrusted assets and the measures to prevent and manage
the above risks;
d) Evaluation of the ability to maintain
equipment, material facilities, technical solutions, system security, backup
system for disaster, backup system for hot, professional process, internal
control system, risk management, human resources having experience and
appropriate professional qualification to ensure the authorization to be
carried out smoothly, not affecting the investment activities and services to
provide for entrusting customers.
5. The reports of the examination, monitoring
implemented according to the provisions at Point b, Clause 3 of this Article,
service quality assessment report of the authorization provided for in Clause 4
of this Article and other relevant documents must be provided for the
Management Board or Council of members or owner of the fund management company,
the fund representative board, the Management Board of securities investment
company, concerned custodian bank and the State Securities Commission within
thirty (30) days from the date of the report to be summarized.
Article 27. Termination of
the rights and obligations for entrusting customers and replacement of the fund
management company
1. The fund management companies terminate their
rights and obligations for entrusting customers in the following cases:
a) Voluntary termination of their rights and
obligations for entrusting customers under the provisions of the fund charter,
the charter of the securities investment company, investment management
contracts;
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c) Permit of establishment and operation to be
revoked according to the provisions of Article 70 of the Law on Securities;
d) Consolidation or merger with another fund
management company;
đ) Funds, securities investment companies,
expiration of operation duration, of investment management contract.
2. Fund management company must organize the
general meeting of investors, general meeting of shareholders of securities investment
company, entrusting customers to consult on the plan to handle assets and
replacing fund management company in cases specified at Point a, c, d, Clause 1
of this Article.
3. Within fifteen (15) days from the date that
entrusting customers ratify the decision on replacing the fund management
company, replacing fund management company is obliged to send to the State
Securities Commission the following documents:
a) A written request for termination of the
rights and obligations toward entrusting customers and replacement of the fund
management company, signed by the legal representatives of both the fund
management companies;
b) Record of the meeting and the resolutions of
the general meeting of investors, the general meeting of shareholders of securities
investment company, the contract in principle of termination of the rights and
obligations with respect to entrusting customers, the contract in principle
signed between entrusting customers and replacing fund management company;
c) Plan for dealing with assets and process to
transfer obligations;
d) The contract in principle of supervision,
custody and other contract to provide service (if any);
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4. Records in accordance with provisions of
Clause 3 of this Article shall be made in one (01) original set attached a file
of electronic information. The original set is sent in person to the State
Securities Commission or sent by post.
5. Within fifteen (15) days from the date of
receipt of complete, valid records as specified in Clause 3 of this Article,
the State Securities Commission shall approve the change of fund management
companies.
6. Within three (03) days from the date of being
approved by the State Securities Commission, the replacing fund management
companies have to disclose information of receiving handover of management of
entrusted assets on electronic information page of the fund management company
and the supervisory, custodian bank.
7. Rights and obligations toward entrusting
customers of replaced fund management company replaced are terminated only from
the time of completion of the registration and transfer of ownership to the
entrusted assets, handover of all assets and documents to prove ownership,
vouchers, books and information on the entrusted assets, entrusting customers
to the replacing fund management company. The transfer of assets must be
completed within six (06) months from the date of receipt of written approval
of the State Securities Commission under the provisions of Clause 5 of this
Article. The termination of the rights and obligations of the fund management
company for customers entrusting portfolio management shall comply with the
provisions of point b Clause 10, Article 21 of this Circular.
8. Within seven (07) days from the date of
completion of the handover, the replacing fund management company sends to the
State Securities Commission a handover record of responsibilities and assets
between both fund management companies. The record must be certified by
entrusting customers, entrusting customers’ representatives and the depository
bank, custodian bank.
9. The replaced fund management company must
take entirely responsibility for the liabilities and assets toward entrusting
customers that have not been handed fully to the replacing fund management
company. In this case, the replaced fund management company shall resolve and
overcome the consequences arising within three (03) years from the completion
of the transfer of assets to the replacing management company as provided for
in Clause 8 of this Article.
10. Entrusting customers shall bear all costs
related to the replacement of the fund management company in the cases
specified at Point b, Clause 1 of this Article. Other cases shall follow an
agreement between two parties.
Section 2. FUND MANAGEMENT
PROFESSION
Article 28. Establishment,
dissolution of fund under foreign law
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2. Within thirty (30) days from the date of
completion of the registration of the establishment, dissolution of fund with
the foreign competent management authorities, the fund management companies
notify the State Securities Commission and enclose the following documents:
a) A valid copy of offering certificate of fund
certificates, written registration for establishment of fund under foreign law
or equivalent documents; or documents certifying the dissolution of fund issued
by the foreign competent authorities;
b) A valid copy of registration documents for
the establishment of the fund, the fund dissolution is submitted at the request
of the foreign competent management authority, including minutes of the
meetings and resolutions of the general meeting of investors or the
representative board of the fund or equivalent organization of the fund for the
liquidation or dissolution of the fund.
3. The fund established abroad by fund
management company when participating in invest in Vietnam must comply with the
relevant regulations applicable to foreign investors. The selling offering of
fund certificate established abroad in Vietnam must comply with the regulations
of the selling offering of securities of foreign issuers in Vietnam.
Article 29. Establishment
of fund, fund management under Vietnamese law
1. Fund management companies may raise capital
domestically and abroad to establish the types of securities investment funds,
including the securities investment companies as prescribed by securities law.
2. Fund management companies are established,
managed real estate investment funds when having at least two (02) employees
meeting the following conditions:
a) The provisions of Point a, b Clause 5,
Article 9 of this Circular;
b) Having a certificate of real estate valuation
in accordance with the provisions of law on real estate business and having at
least two (02) years of experience in real estate valuation in the real estate
business organizations, the real estate service business organizations, price
valuation enterprises; or
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3. The establishment, order, procedures, records
and management operation of types of securities investment funds shall comply
with the law on the establishment and management of securities investment
funds.
Section 3. PORTFOLIO
MANAGEMENT PROFESSION
Article 30. Portfolio
management and investment management contracts
1. The fund management company providing
portfolio management services to entrusting customers based on investment
management contracts signed with customers. Where entrusting customer is an
organization, investment management contract must be signed by the legal
representative of the customer, or an authorized representative enclosed with
written authorization made in accordance with the law provisions.
2. Investment management contract must be
archived at the office of the company and provided to the State Securities
Commission upon request. Investment management contract must include the basic
contents as prescribed in Appendix 06 attached herewith and shall ensure:
a) There are no provisions to facilitate the
fund management company to be able to avoid liability of compensating
customers, in case of fault of the company or by the intentional mistake of the
Company;
b) There are no provisions to limit the scope of
compensation, the financial responsibility of the company toward customers
without legitimate reason; or transfer the risk to the customers in case of
fault of the company or by the intentional mistake of the Company;
c) There are no provisions of unfair treatment
to customers.
3. The use of capital of entrusting customers
for investment must ensure:
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b) In case the investment management contracts
contain provisions allowing the performance, the fund management company is
used capital of entrusting customers to contribute capital to establish,
purchase contributed capital, shares in the unlisted companies, register
transactions; invest in the projects, real estate and other assets not
securities listed, registered transactions; corporate bonds issued individually
in accordance with the provisions of law; implement repurchase transactions
(repo) for assets other than government bonds. The investment in the assets
mentioned above and implementation of the transactions provided for in this
point must fully comply with the following principles:
- For investment activities, assets must be
registered ownership in the name of entrusting customers, unless the entrusting
customers otherwise request in writing.
Where the fund management companies are required
to take the name as the owners of the assets on behalf of the entrusting
customers, before the transactions are made, the fund management companies must
be approved in writing by the customers to allow implementing the transactions
and report to the customers after the transaction have been completed.
- For repurchase transactions (repo) of assets
not being government bonds, the entrusting customers must take the name as the
transactors, not authorized to the fund management company. Payment vouchers,
assets traded, the original contract and the legal documents to confirm
ownership of assets must be deposited and sent fully in the depository bank
selected by the entrusting customers;
c) In case the fund management companies are
required to take the name of the owners of the assets on behalf of entrusting
customers in the portfolio management activities for entrusting customers who
are insurance companies, financial institutions, securities companies, public
companies; the fund management companies are responsible for requiring
entrusting customers to state clearly limited investment in writing and take
responsibility before law for the type of invested assets, volume of invested
assets, investment value, form of implementation, to ensure compliance with the
regulations on financial safety, capital safety and other provisions of
specialized laws, the provisions of the law on securities and provisions of
charter of the companies of entrusting customers, particularly in the following
activities:
- Investing in the entrusting customer itself.
In case of investing in shares issued by the entrusting customers, it must
comply with the provisions of law relating to treasury stock transactions;
- Investing in parent companies, subsidiaries,
joint ventures, associated companies and other organizations who are related
persons of the entrusting customers; the organizations who are related persons
of the members of the Management Board or Council of members or presidents of
entrusting customers’ companies;
- Investing in real estate, the investment
projects developed, managed by entrusting customers, the parent companies, subsidiaries,
joint ventures, associated companies of entrusting customers, or the
organizations who are related persons of the members of the Management Board or
Council of members or presidents of entrusting customers’ companies;
- The entrusting customers must make notice,
report, disclose information or obtain the approval of the competent State
management agencies on the transactions and investment activities mentioned
above in accordance with the provisions of specialized law (if specified);
obtain the approval of the general meeting of shareholders, Council of members,
Management Board on the transactions, investment activities mentioned above to
suit to charter of entrusting customers’ companies (if specified);
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đ) In case entrusting customers as foreign
individuals, organizations with 100% foreign capital, the fund management
companies are made the investment in, financing for the enterprises as
designated or according to the terms and conditions in the investment
management contract in accordance with the provisions of relevant law.
Article 31. Investment
Policy
1. The fund management companies are responsible
for information synthesis to identify customers, including information on the
beneficiaries (if any); financial capacity, investment experience, investment
period, investment objectives, the acceptable level of risk, limited
investment, portfolio sample and other requirements (if any) of the customers;
necessary information related to the limited investment specified in Clause 3,
Article 30 of this Circular.
2. Quarterly, the fund management companies are
responsible for updating the entrusting customer identification information in
accordance with provisions in Clause 1 of this Article. When the change is
arisen, the entrusting customers are obliged to provide full and timely
information related to for the fund management companies. The fund management
companies have the right to refuse to provide portfolio management services to
the customers in case the entrusting customers do not provide full and timely
information as required.
3. The fund management companies are responsible
for building principles and investment policy in accordance with customers’
demand based on sysnthesized information specified in Clause 1 of this Article.
The investment policy should be clear, detailed, fully shown the basic
information on the level of risk, types of risk, structure of portfolio sample,
cost for management, rights and responsibilities of the parties and other
concerned important information. Investment policy is an integral part of the
investment management contract.
4. Where the fund management companies do not
comply with the investment policy stipulated in the investment management
contract, the companies must readjust the portfolio in a shortest period of
time, bear all costs incurred related to this transaction, are not collected
management fee for the portfolio not consistent with the investment policy.
5. Any loss or profit arising from investment
activities not complying with the investment policy, investment objective, or
the portfolio not in accordance with the investment policy, portfolio structure
that has been determined with customers or other errors of the fund management
company, the fund management company shall pay compensation to investors in
accordance with the agreement in writing between the parties or account any
profit arising in the porfolio of the customers right after completion of the
portfolio adjustment.
6. Those specified in Clauses 4 and 5 of this
Article shall not apply in the case the portfolio structure is erroneous due
to:
a) Change of price in the market of the assets
in the portfolio of customers;
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c) Operation of consolidation, merger,
acquisition of the issuers;
d) During a period of six (06) months from the
effective date of the investment management contract.
Article 32. Implementation
of investment
1. The fund management companies must ensure
that customers have enough money and assets to carry out the transactions in
accordance with the law provisions.
2. The fund management companies are made the
transactions of assets between the portfolios of the entrusting customers
according to the following provisions:
a) For assets traded that are not securities
listed or registered for trading on the Stock Exchanges in Vietnam, the
transaction must be approved in writing by the parties to the transaction. The
written approval must include price, volume of the transaction, time to
implement the transaction;
b) For assets traded that are securities listed
or registered for trading on the Stock Exchanges:
- The transactions must be approved in advance
in writting by the parties to the transaction or notified later to the
concerned parties in accordance with the provisions of the contract; and,
- Purchase price (sale) shall not be higher
(lower) than the closing rate at the date of the transaction; or the transaction
price determined by the fund management company within the margin of trading
price at the date of the transaction in accordance with provisions of the
contract.
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a) Directive of the investment of entrusting
customer must be in writing and must specify the type of assets invested or the
organizations receiving investment capital, value of investment capital or
amount of invested assets, time and duration to perform, the name of the person
who registered as owner of the assets invested;
b) Where the fund management company is required
to take name as the owner on behalf of the entrusting customer:
- The fund management companies are responsible
for requiring entrusting customers to provide sufficient information to ensure
the entrusting customers and trading partners, organizations receiving
investment capital to meet fully the conditions for transactions to be
performed under the provisions of Clause 3 of Article 30 of this Circular and
in accordance with the provisions of specialized law governing the operation of
entrusting customers, organizations receiving investment capital and other laws
(if relevant);
- In case of investing in securities of public
companies, entrusting customers are responsible for implementing by their own,
or the written authorization to require the fund management companies to report
ownership, disclose information before and after the transaction in accordance
with provisions of securities law applicable to the persons who know internal
information (in the case entrusting customers are the ones who know internal
information under the provisions of the securities law) and to major
shareholders (in the case entrusting customers are the major shareholders, the
fund's major investors in accordance with the provisions of securities law,
including the number of shares owned by customers as shares registered in the
ownership name of entrusting customers and the number of shares designated by
entrusting customers for the fund management companies making investment in to
take the ownership name as the owner on behalf of the customers).
Article 33. Depository,
asset management of porfolio entrusting customers
1. In the portfolio management, fund management
companies are opened depository accounts in the name of fund management
companies in several depository banks to deposit entrusted assets according to
the following principles:
a) At each depository bank, fund management companies
are openned (01) depository account for domestic entrusting customers and a
(01) depository account for foreign entrusting customers;
b) Each entrusting customer, including domestic
and foreign customer is selected for itself a (01) depository bank for
depository of portfolio entrusted management for the fund management company;
c) All the assets of the customers must be
registered, deposited timely, fully at the depository bank that customers
selected and must be managed separately and independently according to the
following principles:
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For securities issued in the book-entry form, or
which have not got legal documents to certify ownership of the assets, the fund
management company shall deposit the original contracts of the transaction, the
deposit contracts or valid copies of these contracts; together with transaction
documents, and require the issuers and organizations receiving investment
capital, credit institutions accepting deposits or organizations managing the
registrars of shareholders, periodically once a month to crosscheck, certify
the ownership of assets as required by the depository bank;
d) The settlement of transactions of securities
listed, registered for trading 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 for other asset transactions
must comply with the legal orders and directives of the fund management company
and other provisions of law, if relevant. All transfers and payments, transfer
of securities must be implemented to the right trading partners of the
entrusting customers, the accounts of the entrusting customers. Payment value
must match with the number of assets, stock and the right amount of money
stated in the payment vouchers. Invoices, accounting documents, electronic
information, the documents certifying the payment and the implementation of
transaction to entrusting customers must be archived fully and accurately;
except for performing the transactions of assets between the portfolio of the
entrusting customers under the provisions of Clause 2 of Article 32 of this
Circular, the fund management company and the depository bank, custodian bank
is not transferred money and assets internally between the accounts of
customers entrusting the portfolio management;
đ) Signing a depository contract with the
depository bank to deposit all assets arising in Vietnam and managing assets
separately to each entrusting customer. Depository contract must be consistent
with the investment management contract and include some main contents in the
form prescribed in Appendix 07 attached herewith.
2. Entrusted assets under material or immaterial
form, registered ownership and deposited on the depository account in the name
of the fund management company but owned by the entrusting customers and not
being the assets of the fund management company, depository bank. The fund
management company, depository bank may not use these assets for payment or
guarantee of payment for the debts of themselves or for third parties,
including the fund management company or depository bank.
3. The fund management companies ensure
entrusting customers to be inherited all the rights of ownership to the assets
on their entrusting accounts according to the following principles:
a) The fund management companies are represented
only by authorization of entrusting customers and are allowed to perform only
the activities within the scope of authorization which have been specified in
the investment management contract;
b) The fund management companies are used and
managed assets only on entrusting customers’ accounts in accordance with the
provisions of the investment management contract or according to written
instructions of the customers;
c) The fund management companies exercise the
right to vote and other ownership rights in accordance with the written
instructions of the entrusting customers; promptly inform fully and accurately
to entrusting customers the benefits arising related to their assets.
4. The fund management companies are managed
porfolio on the account of trading securities of customers. In this case, the
customers shall notify the securities companies, depository members on the
entrustment of management of securities portfolio to the fund management
company, together with investment management contracts on customers’ accounts.
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Article 34. Receipt and
returning of assets to customers
1. In the portfolio management, the fund
management companies are received assets not being money to manage. The assets
that the companies receive from the customers to manage must meet the following
conditions:
a) Owned by the entrusting customers, with
sufficient valid legal documents to verify ownership of customers’ assets;
b) Being assets freely transfered, not being
restricted transfer at the effective time of the investment management
contracts;
c) Not being the assets being mortgaged,
pledged, deposited or in the transactions of collateral security assets in
accordance with the provisions of civil law.
2. Entrusting customers transfer ownership of
assets in the entrusted porfolio to a fund management company to manage in
accordance with the following provisions:
a) For assets with ownership registration, the
entrusting customers conduct procedures to transfer ownership of the assets to
the fund management company in the competent state agency. Where the entrusted
assets are securities listed or registered for trading or centralized
depository, the transfer of ownership is done through the Securities Depository
Center and not subject to transaction fees. For other assets, the transfer of
ownership shall comply with the provisions of the relevant law;
b) For assets non registered ownership,
entrustment of capital must be made by the delivery of entrusted assets
certified by record. Record of delivery must clearly state:
- Full name, permanent address, number of
identity card, passport or other lawful personal identification (for entrusting
customer to be an individual);
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- Type of assets and number of unit entrusting
assets; value of entrusted assets; date of delivery; entrusting customer’s
signature or representative of entrusting customers and the legal
representative of the fund management company;
c) Assets are deemed to have been entrusted to
the fund management company to manage only when legal ownership right to the
assets contributed as capital was transferred to the fund management company;
d) The value of the entrusted assets in the
investment management contract are determined according to the principles for
determining the net asset value in accordance with the law provisions on the
establishment and management of securities investment fund. For assets not
being securities listed, registered for trading, transfer instruments, the
valuation of entrusted assets may be implemented by the price appraisal
organizations in accordance with the provisions of the law on valuation.
3. The fund management companies are returned
the entrusted assets to customers upon request in writing by the customers. The
handover, transfer of ownership of the assets shall comply with the
instructions of the entrusting customers and the provisions of Clause 2 of this
Article. In case of receiving, returning assets to be securities registered for
centralized depository, the Securities Depository Center shall transfer
ownership out of the securities trading system as required in writing by the
fund management companies, entrusting customers, depository bank.
Section 4. SECURITIES
INVESTMENT CONSULTANCY
Article 35. Securities
investment consultancy
1. Securities investment consulting activities
include the following contents:
a) Advising customers on investment policy and
strategy of transaction, including the invested capital allocation structure;
type of assets invested and the method to determine value of assets; form of
investment, transaction; time to implement, the quantity and the price in
accordance with the objective, investment policy, the level accepting risk of
customers;
b) Issuing to the public of the publications on
securities investment after it has been licensed under the provisions of the
law on the press; building and implementing the universal programs of
knowledge, promoting securities investment, the intensive training programs on
investment in securities.
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3. In case of providing securities investment
advisory services, the fund management companies must appoint at least one
professional staff at the investment advisory department to advise each
customer. Professional staff in the investment advisory department must meet
those specified at Point a, d, đ, Clause 1, Article 11 of this Circular, having
the securities business practicing certificate or meet those specified at Point
c, Clause 1 Article 11 of this Circular, and not being concurrently worked in
other professional departments of the company, including the departments of
fund management, asset management, investment department.
4. At least five (05) days before the change of
consultant advising customers, the fund management company shall notify in
writing to the customers and provide information on the replacing staff in
accordance with provisions of point c, Clause 5 of this Article.
5. Fund management companies must sign the
investment advisory contract with each customer, which clearly states:
a) The scope of consultancy, service providing
form, assets received for consultancy;
b) Duration of the contract, service charges;
c) Full name and resume of experience of the
consultant;
d) The rights, responsibilities and obligations
of the parties to the contract.
Article 36. Regulations on
investment consultancy of the fund management companies
1. Voluntariness, fairness, honesty to
customers, providing complete, timely accurate information for customers to
make their own investment decisions.
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3. When advising for investment in an asset, the
fund management company must ensure the conformity with the investment
objective, level accepting risk, the financial capacity of the customer, and
the fund management company, consultant has to announce their interests related
to such asset if the company, consultant who owns the asset.
4. The counsultant has the responsibility to
explain to customer that his/her advice to give to customer’s investment
activities is for reference only and customer must bear all risks from their
investment decisions.
5. In the securities investment consultancy,
fund management companies, counsultant must:
a) Not advise customers to invest in assets
without providing full information on the assets, the issuers to the customers;
b) Not broker transaction of purchase and sale
between customer and a third party; Not broker transaction of lending,
borrowing assets between customer and the fund management company or between
customer and third parties;
c) Not provide the information that has not been
verified, rumors, false information to customers; not provide false
information, not be amplified the truth, misleading, not give the forecast or
perform the acts to entice, induce or invite customers to trade in an asset
that does not match with the investment objective, investment experience, risk
awareness capability, level accepting risk and financial capacity of customers;
not provide misleading information on the profit and risk characteristics of
the assets;
d) Not give gifts, use the material benefits
under any kind to offer, solicit customer to trade an asset; not request,
require or receive in the name of an individual or the name of an organization,
from customers, the fund management company or a third party of any
compensation, any material benefit to offer customers to make an asset
transaction, in addition to the fee specified in the investment advice
contract.
đ) Not invest on behalf of customers, receive
money, customer’s assets for investment or transaction, unless the entrusting
customers have signed investment management contract with the fund management
company;
e) Not forecast price of asset in future, ensure
investment results (except for investments in fixed-income products or the
products invested for capital preservation) or agreement of sharing profit or
loss with the customer.
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1. The fund management company is made
securities investment consulting professional supplement. Records requesting
for securities investment consulting professional supplement include the
following documents:
a) An application for amending the permit of
establishment and operation of business in the form specified in Appendix 05
issued together with this Circular;
b) Minutes of meetings and resolutions of the
shareholders' general meeting, Council of members or the decision of the owner
of securities investment consulting professional supplement; amended and
supplemented charter of the company;
c) A list in the form prescribed in Appendix 02
issued together with this Circular and personal profile, a valid copy of the
securities business practicing certificate, or certificate of practicing
securities investment consultancy in the OECD countries or the international
certificates of CFA, CIIA at levels of professional staff in the investment
advisory department.
2. Records specified in Clause 1 of this Article
shall be made in one (01) original set attached a file of electronic information.
The original set is sent in person to the State Securities Commission or sent
by post.
3. Within five (05) working days from the date
of receiving the complete and valid records as prescribed in Clause 1 of this
Article, the State Securities Commission shall issue the permit of adjusting
the permit of establishment and operation of the company. In case of refusal,
the State Securities Commission shall reply in writing, clearly state the
reason.
Chapter IV
OBLIGATIONS OF REPORT
AND MANAGEMENT OF RECORDS
Article 38. Provision of
information to the investors, customers entrusting porfolio
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a) The fund charter, the charter of the
securities investment company, the prospectus, summarized prospectus, and other
documents, reports, contracts referred to in the prospectus, summary prospectus
of the fund, securities investment company;
b) The annual financial statements of the funds,
securities investment companies audited in at least five latest (05) years;
semi-annual financial statements, quarterly financial statements to the latest
quater of the funds, securities investment companies;
c) Reports on the operation of the funds,
securities investment companies on a quarterly and annual period as prescribed
by law for the establishment and management of investment funds, the securities
investment companies at least (05) latest years;
d) Report on the net asset value of the funds,
securities investment companies in accordance with the law provisions on the
establishment and management of investment funds, securities investment
companies.
2. Where the entrusting customers or
representatives of entrusting customers request, the fund management companies
must provide the risk management process, outlining the limited investment,
method of prevention and risk management that the companies use to manage
assets of entrusting customers.
3. For customers entrusting portfolio, the fund
management companies are responsible for:
a) Providing investment management contracts and
other documents attached to the contract;
b) Providing depository contracts and documents
attached to the contracts;
c) Monthly reporting to the customers on the
state of portfolio in the form prescribed in Appendix 08 attached herewith;
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Article 39. Obligation to
report
1. The fund management companies send to the
State Securities Commission periodic reports on the activities of the company
as follows:
a) Report on monthly activities of the fund
management company with the contents of the form in Appendix 09 attached
herewith;
b) Quarterly financial reports, semi-annual
financial statements, annual financial statements. Semi-annual financial
statements and annual financial statements must be examined and audited by an
approved auditing organization;
c) Monthly reports on the status of portfolio
management in the form prescribed in Appendix 10 attached herewith;
d) Financial statements of the funds, securities
investment companies under the provisions of the law on accounting for the
funds, securities investment companies.
2. The fund management companies must notify the
State Securities Commission the following events:
a) Change, recruitment and appointment of new
members of the Management Board or Council of members, the Executive Board and
professional staffs. Notification of change, recruitment and appointment of
personnel must be accompanied by the personal profile of the replacing
personnel and the relevant documents to verify the replacing personnel to meet
the conditions as specified at Point g, Clause 1 of Article 5 of this Circular;
b) Amendments and supplements to the charter of
the company; the charter, prospectus of the fund, securities investment
companies managed by the company. Report attached by the amended and
supplemented charter of the company, charter, prospectus of the fund,
securities investment companies managed by the company.
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3. The deadline for submission of the reports
specified in Clause 1 of this Article:
a) Within ten (10) days from the end of the
month for the monthly reports;
b) Within twenty (20) days from the end of the
quarter for the quarterly reports;
c) Within forty-five (45) days from the end of
the first six months of the year for the semi-annual financial statements;
d) Within ninety (90) days from the end of the
fiscal year for annual report.
4. The time limit for report to the State
Securities Commission on the events referred to in Clause 3 of this Article is
three (03) working days after the occurrence of the events.
5. The fund management companies report to the
board of representatives of the fund, the Management Board of the securities
investment company or portfolio entrusting customers in case of detection of
the violations of the custodian bank, depository bank for fund charter, charter
of investment company securities, contract of supervision, depository contract,
report to the State Securities Commission in the case these organizations
violate the law provisions within three (03) working days from the detection of
violation.
6. In addition to the cases of report specified
in this Article, in case of necessity, in order to protect the public interests
and the interests of investors, the State Securities Commission may require the
fund management companies to report on operation of the companies.
7. The fund management company must report to
the State Securities Commission, within forty-eight (48) hours from receipt of
the requirement for report specified in Clause 6 of this Article.
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Article 40. Archiving of
records, documents and information
1. The fund management companies must keep
completely, accurately, timely, and systematically the all documents, records
and update information and data relating to the operation of the companies. The
information on the activities of the companies must be made backup in a
location outside the companies’ headquarters.
2. The fund management companies, custodian
banks, depository banks, dealers, concerned service providing organizations
must archive fully, systematically to ensure clearly, precisely and
consistently the documents related to:
a) The selling offering of fund certificates,
distribution of fund certificates;
b) Certification of the ownership to the fund's
investors, securities investment companies, entrusting customers; registration
of asset ownership of the fund, securities investment company, entrusting
customers;
c) Financial statements, accounting records; system
of accounts, bills, transaction documents must be secured to reflect in
details, accurately and timely daily orders of transactions of each entrusting
customer, of the company and the employees in the company, including
information on the order to make orders, the transactions made; documents and
electronic information used to determine the net asset value; the original
legal documents of ownership registration, the original legal documents of
ownership verification relating to assets, asset transactions and other
documents if relevant must be stored by the fund management company and the
custodian bank, depository bank in the process of operation of the fund, the
securities investment company, the validity of the investment management
contract;
d) Report on the activities of valuation,
investment analysis, investment decision, investment management, withdrawal of
capital and other relevant documents; final report on the asset management
operations; report on the internal inspection, control in accordance with laws
and internal regulations; report on the resolution of complaint letters,
complaints and denunciations, compensation requirements of customers.
3. Portfolio, data and transaction documents,
ownership registration, bookkeeping, accounts, documents, electronic
information relating to assets, asset transactions of the fund, the securities
investment company, the entrusting customers must be periodically and
frequently inspected, crossed check by the fund management company, supervisory
bank, custodian bank and the related institutions in accordance with provisions
of the fund charter, charter of securities investment company, investment
management contract and the regulations of law on accounting.
4. Documents and information specified in
Clauses 1, 2 and 3 of this Article shall be archived within ten (10) years.
Where the documents are related to the accounting activities, it shall comply
with the specialized provisions in the field of accounting and auditing.
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IMPLEMENTATION
Article 41.
Implementation provisions
1. This Circular takes effect from
01/03/2013 and replaces the Decision No.35/2007/QD-BTC dated 15/5/2007 of the
Minister of Finance on promulgating the Regulation on organization and
operation of the fund management companies and the Decision No.125/2008/QD-BTC
dated 26/12/2008 on amending and supplementing a number of Articles of the
Regulation on organization and operation of the fund management companies
issued together with the Decision No.35/2007/QD-BTC dated 15/5/2007 of the
Ministry of the Minister of Finance.
2. The fund management companies
establish internal audit department under the provisions of Clauses 1 and 5 of
Article 9 of this Circular; adjust the portfolio management activities in
accordance with the provisions of Article 30, 31, 32, 33 of this Circular;
change the organizational structure and adjust their operations in accordance
with the provisions of this Circular. These activities must be completed and
notified in writing to the State Securities Commission within six (06) months
from the effective date of this Circular.
Article 42.
Implementation organization
The State Securities Commission,
the fund management companies, the depository bank, the custodian bank and the
relevant organizations and individuals are responsible for the implementation.
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