Circular No. 227/2012/TT-BTC of December 27, 2012, guiding the establishment, organization, and management of investment companies

• Official number: 227/2012/TT-BTC
• Legislation Type: Circular
• Organization: The Ministry of Finance
• Signer: Tran Xuan Ha
• Issued Date: 27/12/2012

THE MINISTRY OF FINANCE --------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness ---------------
No. 227/2012/TT-BTC	Hanoi, December 27^th 2012

CIRCULAR

GUIDING THE ESTABLISHMENT, ORGANIZATION, AND MANAGEMENT OF INVESTMENT COMPANIES

Pursuant to the Law on Securities dated June 29^th 2006;

Pursuant to the Law on the amendment and supplementation of  the Law on Securities dated November 24^th 2010;

Pursuant to the Law on Enterprises dated November 29^th 2005;

Pursuant to the Government's Decree No. 58/2012/ND-CP dated July 20^th 2010, detailing and guiding the implementation of a number of articles of the Law on Securities and the Law on the amendment and supplementation of the Law on Securities;

Pursuant to the Government's Decree No. 118/2008/ND-CP dated November 27^th 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the request of the President of the State Securities Commission;

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Chapter I

GENERAL REGULATIONS

Article 1. Scope of regulation and subjects of application

1. This Circular deals with the capital generation, establishment, management, and supervision of the investments made by public investment companies and private investment companies in Vietnam.

2. This Circular is applicable to:

a. Asset management companies, depository banks, and supervisory banks

b. Public investment companies and private investment companies in Vietnam;

c. The Board of Directors, members of the Board of Directors of investment companies, and shareholders of investment companies;

d. Relevant organizations and individuals.

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In this Circular, apart from the terms explained in the Government's Decree No. 58/2012/ND-CP dated July 20^th 2010, detailing and guiding the implementation of a number of articles of the Law on Securities and the Law on the amendment and supplementation of the Law on Securities (hereinafter referred to as the Decree No. 58/2012/ND-CP), the terms below are construed as follows:

1. Distributor is a securities company or asset management company.

2. Liquidation value of a share is the equity capital value of the issuer divided by the total number of shares outstanding.

3. Personal profile includes the information form in Annex 21 enclosed with this Circular, authenticated copy of the unexpired ID card, passport, or other ID papers.

4. Valid dossier is an dossier that has adequate papers prescribed in this Circular, and provided with adequate information as prescribed by law.

5. Pricing date is the date on which the asset management company determines the net asset value of the investment company.

6. Fund controller is the person appointed by the asset management company to operate the investment company.

7. Group of associated companies is:

a) Parent company – subsidiaries (holding at least 51% of charter capital);

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c) Associate companies (holding at least 30% of charter capital);

8. Charter capital of the securities company is the capital contributed by shareholders and written in the company’s charter.

Article 3. General regulations on investment companies

1. Investment companies include Public investment companies and private investment companies.

2. Name of a investment company must be conformable with the laws on enterprises, written in Vietnamese, may be associated with numbers, symbols, pronounceable, and consist of at least the two components:

a) The phrase “Investment company”;

b) Proper name.

3. A public investment company must entrust an asset management company with the capital management. The capital management is supervised by a supervisory bank.

A private investment companies may entrust the capital management to an asset management company or may manage its capital itself. When entrusting the capital management to an asset management company, at least 2/3 of the members of the Board of Directors of the private investment company are independent members as prescribed in Clause 1 Article 80 of the Decree No. 58/2012/ND-CP.

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Assets of an investment company are under the ownership of shareholders, in proportion to the contribution, and are not assets of the asset management company, supervisory bank, or depository bank. The asset management company may use these assets to pay for the financial obligations of the investment company, may not use them to pay for or underwrite the financial obligations of the asset management company, the supervisory bank, or of any other organizations and individuals, in any shape or form, and in any case.

5. An investment company may not establish branches and representative offices. An investment company that entrusts the capital management to an asset management company may use the head office of the latter as the head office of the former.

6. A private investment companies that entrusts the capital management to an asset management company or may not recruit employees. The Director (General Director), Deputy Director (Deputy General Director) of this company is the fund controller appointed by the asset management company, and must comply with the regulations on the establishment, organization and operation of asset management companies, applicable to securities traders and fund controllers

7. An investment company only issues 01 kind of shares, and is not obliged to repurchase the issued shares, unless they are purchased for destruction during the amalgamation or merger with other investment companies.

8. Where the charter of the investment company allows foreign inventors to own more than 49% of the charter capital, the investment company must register the securities trading number, and comply with the regulations on ownership limits applicable to foreign investors.

9. The charter, prospectus, and the summary prospectus are made in accordance with the templates in Annex 03, 04, and 05 enclosed with this Circular. The revision of the charter must be passed by the General meeting of shareholders of the investment company. Where the charter of the investment company allows, the asset management company (if any) and the Board of Directors of the investment company may correct the spelling and grammatical errors without affecting the contents of the charter in the absence of opinions from the General meeting of shareholders. After revising, the asset management company (if any) and the Board of Directors of the investment company must notify the shareholders of the revisions.

10. The information about the securities company shall be provided via one of the following means below:

a) On the website of the asset management company and investment company (when the assets are managed by the investment company itself). The information about the offerings, issues of additional shares, and other cases that are considered necessary must be posted on both the websites of the supervisory bank, the depository bank, and the distributor;

b) On the mass media of the Vietnam Securities Depository, the Stock Exchange (applicable to public investment companies);

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Chapter II

PUBLIC INVESTMENT COMPANIES

Section 1. Company establishment

Article 4. Registering the offerings and stock issues of public investment companies

1. The public offerings and issues of shares of an investment company include initial public offering for raising capital to establish the company, and issues of additional shares to increase capital.

2. The initial public offering must be registered with the State Securities Commission by the asset management company, and comply with the following regulations:

a. The total value of offered shares reaches at least 50 billion VND;

b. The asset management company has enough capital as prescribed by laws on the establishment, organization and operation of asset management companies; is not put under the control, special control, suspension, termination, amalgamation, merger, dissolution, or bankruptcy;

c. The asset management company does not omit to implement the decision on penalties for the violations against the regulations on securities made by competent State agencies, and to relieve the consequences.

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a) Satisfy the conditions in Clause 1 and Clause 2 Article 94 of the Law on Securities;

b. Have plans for the issues and capital used passed by the latest General meeting of shareholders of the investment company. The passed plan must consist of the following contents:

- The information about the ratio of call options; the rules and methods for determining issuing prices; the stock dilution after the issue; the method for determining issue prices; the ratio of successful issue, or the minimum amount collected from the issue, and the solutions when the issue does not succeed or the amount collected is not adequate as anticipated; the criteria for selecting investors to issue, and the method for determining the issue conditions if the shares additionally issued are not completely distributed;

- Information about the plan for using capital; the targets, plans, and disbursement roadmap (if any);

c) The issue dossier, the issue time, the specific issue prices, the criteria and subjects of offering, if the call options are not completely distributed, must be passed by the Board of Directors of the investment company;

d) Shares are only issued to the existing shareholders of the investment company by issuing call options. The call option on transferable shares. Where existing shareholders fail to exercise their call options, the investment company may offer them to other investors.

4. The documentation, order, and procedure for registering public offerings of investment companies must comply with Article 78 of the Decree No. 58/2012/ND-CP. The registration form for public offerings and issues of additional shares is provided in Annex 01 enclosed with this Circular.

5. The application for the issue of additional shares includes:

a) The papers prescribed in Point a, Point b, Point c Clause 1 Article 78, and other relevant papers prescribed in Article 82 of the Decree No. 58/2012/ND-CP;

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c) The Financial statements of the year succeeding the year in which the issue of additional shares is requested, which is audited by an accredited audit organization; the profit of the investment company in that year must be a positive number.

6. The application for issuing additional shares of the securities company prescribed in Clause 5 of this Article shall be made into 01 original dossier, enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

7. Within 30 days from the date on which the complete and valid dossier is received as prescribed in Clause 5 of this Article, the State Securities Commission shall issue the Certificate of additional share issues registration to the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

8. The asset management company is responsible for ensuring that the information in the application is accurate and unequivocal, and the all important contents that affect the decision making of investors are provided. While the application is being examined, the asset management company shall update and revise the application if inaccurate information is detected, or new important information is provided, or mandatory information is omitted, or explanation for confusing issues is necessary. The written revision must bear the signatures of the persons that signed the application, or of the persons that hold the same positions as such signers, or of the legal representative of the company.

When the investment company issues additional shares, the asset management company and the Board of Directors of the investment company are jointly responsible for the accurate application. In this case, the revision of the application and information must be announced by the asset management company as prescribed in Clause 10 Article 3 of this Circular.

9. While the State Securities Commission is examining the application, the asset management company, the Board of Directors of the investment company, and relevant persons may only accurately use the information in the prospectus sent to the State Securities Commission for market survey. It is required to note that all information is just anticipated. This information must not be provided on the mass media.

10. The Certificate of Share offering registration, the Certificate of Additional share issue registration issued by the State Securities Commission are the documents certifying that the application for offering and application for issue of additional shares of the securities company are satisfactory as prescribed by law.

Article 5. Offering and distributing shares of public investment companies

1. The public offering of the investment company is only made after the State Securities Commission issues the Certificate of Share offering registration.

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3. The asset management company, distributor, and underwriter (if any) must distribute share of the investment company fairly and openly, provide at least 20 days for investors to register share purchase. This period must be written in the offering notice.

Where the number of registered call options exceed the number of offered shares, the asset management company must distribute all the offered shares to investors in proportion to their registered call options.

4. All capital contributed by investors must be deposited in a separate account opened at a supervisory bank, and unblocked after the effective date of the License for establishment and operation of the Investment company. The supervisory bank is responsible for paying the investment company an interest equal to at the effective interest rates on demand deposits while the capital is blocked.

5. The asset management company must finish distributing shares of the investment company within 90 days from the effective date of the Certificate of Public offering registration. If the distribution cannot be done within this period, the asset management company shall send a written request to the State Securities Commission for considering extending the deadline for share distribution.

Within 07 days from the date on which the request from the asset management company is received, If the State Securities Commission shall consider extending the deadline for share distribution, but must not exceed 30 days. The refusal must be notified and explained in writing by the State Securities Commission.

6. Within 03 days from ending day of the offering, or from the expiry date of the Certificate of Offering registration, the asset management company and the Board of Directors of the investment company must notify the State Securities Commission, and disclose the information about the ineligibility for establishment of the investment company in accordance with Clause 10 Article 3 of this Circular, in one of the following cases:

a. Fewer than 100 investors purchase stocks, not including professional securities investors; or

b. The raised capital is lower than 50 billion VND, or lower than the minimum anticipated capital as prescribed in the charter of the investment company (if any).

7. Where the conditions for establishing an investment company prescribed in Clause 6 this Article is not satisfied, within 15 days from the ending day of the offering or from the expiry date of the Certificate of Offering registration, the asset management company must refund all the contributions to investors, including the arising interest (if any), and incur the costs of raising capital.

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9. Where additional shares are issued to increase capital, the order and procedure for announcing the issue and distribution of call options must comply with Clauses 1, 2, 3, 4, and 5 of this Article, and other relevant regulations of law on securities and enterprises, applicable to listed organizations.

Article 6. The conditions, documentation, order, and procedure for establishing public investment companies

The conditions, documentation, order, and procedure for establishing investment company are specified in Article 79 of the Decree No. 58/2012/ND-CP. The applications for Licensing investment companies and summary reports on offerings are made in accordance with the form in Annex 06 and Annex 23 enclosed with this Circular.

Article 7. Certifying ownership of shares

1. Within 05 days from ending day of the offering, or from the effective date of the License for establishment and operation of the investment company, asset management company and the Board of Directors of the investment company shall verify the shareholders’ ownership of the purchased shares, and make a shareholder Register with the following contents:

a) The name and address of the head office of the asset management company; name and address of the head office of the supervisory bank; full name, abbreviated name, English name (if any) of the investment company; the ticker symbol if the investment company (if any);

b) The total amount of offered shares; the amount of sold shares, and the capital raised;

c) The list and information about the ownership of stockholders according to the template in Annex 15 enclosed with this Circular;

d) The date of the Shareholder Register.

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3. The asset management company and the Board of Directors of the investment company shall register and deposit stocks of the investment company in accordance with laws on securities depository and registration.

Article 8. Listing shares

1. Within 30 days from the effective date of the License for establishment and operation or the revised License for establishment and operation of the investment company, the asset management company and the Board of Directors of the investment company shall complete the documentation and list the shares of the investment company at the Stock Exchange as prescribed by law.

2. The investors applying for buying shares of the investment company are considered approving this listing. Where the charter and the prospectus allows, opinions from the General meeting of shareholders about the initial listing and additional listing of the investment company are exempt.

3. Clause 1 and Clause 2 of this Article are applicable to the listing of shares issued for swapping during the amalgamation and merger of investment companies.

Section 2. INVESTMENTS MADE BY PUBLIC INVESTMENT COMPANIES

Article 9. List and investments made by public investment companies

1. Investment companies must comply with the regulations on operation in Article 81 of the Decree No. 58/2012/ND-CP.

2. Investment companies may invest in the following financial assets in Vietnam:

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b. Money market instruments, including valuable papers and transfer instruments according to the regulations on banking;

c. Government bonds, bonds guaranteed by the Government, and municipal bonds;

d. Listed shares, registered shares, and bonds listed at the Stock Exchange;

dd. Unlisted shares, unregistered shares of public companies; unlisted bonds of issuers operating under Vietnam’s law; shares of joint-stock companies that are not public companies, and capital contributions in limited liability companies;

e. Other securities as prescribed by law and guidance from the Ministry of Finance.

3. Investment companies may send money and make investments in the money instruments prescribed in Point a and Point b Clause 2 of this Article at the commercial banks accepted by the Board of Directors.

4. The investment portfolio structure of investment companies must comply with their charters, and:

a. Do not invest in more than 15% of the total value of circulating securities of an issuer, except for Government bonds;

b. Do not invest in more than 20% of the total asset value of the investment company in the securities and assets, as prescribed in Point a and Point b Clause 2 of this Article, that are issued by the same organization, except for Government bonds;

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d. Do not invest in more than 10% of the total asset value of the investment company in the real estate or primary assets, as prescribed in Point dd Clause 2 this Article;

dd. Do not use capital and assets of investment companies to give loans or guarantee loans, except for investing deposit prescribed in Point a Clause 2 of this Article; do not use assets of investment companies to take consumer loans, trade securities on margin, giving loans of assets for selling, giving loans of securities for selling (short selling);

e. Do not make investment in the shares of that investment company, in the securities investment funds nor in other investment companies established and operated in Vietnam;

g. Where an investment company is a foreign investor as prescribed in Clause 8 Article 3 of this Circular, when making investments, it must comply with the regulations on ownership limits applicable to foreign investors.

5. Investment companies must not take loans to sponsor their activities, except for short-term loans to defray necessary expenses. The total value of short-term loans taken by an investment company must not exceed 5% of its net asset value at any time, and the longest loan term in 30 days.

6. Except for the cases prescribed in Point dd, e, and g Clause 4 of this Article, the investment mechanism of an investment company may not vary more than 15% of the investment limits prescribed in Clause 4 of this Article, and only the following reasons are acceptable:

a. The fluctuation of market prices of the assets in the investment portfolio of the investment company;

b. The lawful payments made by the investment company;

c. The amalgamation, merger, treasury stocks, and public offers to buy securities of issuers;

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dd. The investment company is undergoing liquidation for dissolution.

7. Within 03 months from the date on which the variances due to the reasons prescribed in Point a, b, and c Clause 6 of this Article, the asset management company must finish adjusting the investment portfolio of the investment company to make it conformable Clause 4 of this Article.

8. Where variances occur due to the non-conformity or the asset management company to the investment limits as prescribed by law or the charter of the investment company, the asset management company must adjust the investment portfolio within 15 days from the date on which the variances occur.  The asset management company must pay compensation to the investment company (if any) and incur the costs related to the adjustment of the investment portfolio. All profits generated must be recorded for the investment company.

9. Within 05 days from the date on which the adjustment of the investment portfolio is done, the asset management company must disclose the information as prescribed in Clause 10 Article 3 of this Circular, and notify the State Securities Commission of the variances, the reasons and the time when they occur or are detected, the damage, and the compensation paid to the investment company (if any), or the generated profits of the investment company (if any), the remedial measures, the remedy period, and the remedy result. The notification must be certified by the supervisory bank.

10. When making asset transactions for the investment company, the asset management company must comply with the following regulations:

a. For the securities listed and registered at the Stock Exchange, the transactions must be made via the transaction system of the Stock Exchange;

b. For the assets not being listed or registered securities, or not mentioned in agreements, the asset management company must obtain written consent from the Board of Directors of the investment company to the range of prices, the time of transactions, the partners, or the forbidden partners (if any), and the transacted assets before transactions are made.

Article 10. Net asset value

1. The asset management company shall determine the net asset value of the investment company and net asset value per share of the investment company at least once per week, in particular:

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b. The net asset value per share equals the net asset value of the investment company divided by the total number of shares outstanding.

2. The asset management company must compile a valuation book which specifies:

a. The rules and criteria for selecting and changing quotation providers. These rules must be specified in the charter of the investment company;

b. The rules, process, and methods for valuation in conformity with law, the charter of the investment company, and passed by the General meeting of shareholders of the investment company. The rules, process, and methods for valuations must be clear, reasonable,  and conformable with international practice in order to be uniformly applied in different market conditions.

3. The valuation book must be passed by the Board of Directors of the investment company, and provided for the supervisory bank for verifying the net asset value. The list of at least 03 quotation providers, that are not relevant to the asset management company and the supervisory bank, must also be passed by the Board of Directors of the investment company.

4. The net asset value of the investment company and the net asset value per share must be verified by the supervisory bank. The verification must be made in writing, or accessed via the electronic information system of the supervisory bank which is approved by the asset management company. On the next working day, after the supervisory bank makes the verification, the information about the net asset value of the investment company and net asset value of per share must be verified by the supervisory bank may be disclosed as prescribed in Clause 10 Article 3 of this Circular.

5. The asset management company may authorize the supervisory bank to determine the net asset value of the investment company and net asset value per share must be verified by the supervisory bank. In this case, the asset management company and the supervisory bank must adopt a mechanism and process for comparison, inspection, and supervision in order to ensure that the determination of net asset values is conformable with laws, and the net asset values are accurately calculated.

6. If the values are incorrectly calculated, within 24 hours from the detection, the supervisory bank or the asset management company (in case the supervisory bank provides net asset value determination services) must notify and request the asset management company or supervisory bank to adjust it.

7. Within 05 days from the date on which the incorrect net asset value is detected, the supervisory bank or the asset management company (in case the supervisory bank provides net asset value determination services) must adjust and disclose the information in accordance with Clause 10 Article 3 of this Circular, and notify the State Securities Commission of the incorrect valuation, including the reasons, the time, and handling measures. The notification must be signed by both asset management company and supervisory bank.

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1. Investment companies may pay dividends to their shareholders according to the profit distribution policy prescribed in their charter, and the distribution plan passed by the latest General meeting of shareholders. The dividends paid to shareholders are extracted from the profit in the period, or from the cumulative profit after all funds are established (if any) according to the charter, and all tax liability and financial obligations are fulfilled (if any) as prescribed by law.

2. Dividends may be paid in cash or by additional shares. At least 15 days before the date on which dividends are distributed, the asset management company must notify all investors. The Notice of dividend payment must contain the information in Annex 22 enclosed with this Circular.

3. The payment of dividends of investment companies must ensure that:

a. It is conformable with the profit distribution policy prescribed in the charter of the securities company, the prospectus, and the summary prospectus;

b. It is done after the investment company has fulfilled all tax liability and other financial obligations as prescribed by law, and established all funds prescribed in its charter (if any);

c. After the payment, the securities company is still able to pay the due debts and other financial obligations, and the net asset value does not fall below 50 billion VND;

d. The dividend rates are decided by the General meeting of shareholders or the Board of Directors of the investment company, in accordance with the investment targets and its charter applicable to the profit distribution policy.

Section 3. THE GENERAL MEETING OF SHAREHOLDERS AND THE BOARD OF DIRECTORS OF A PUBLIC INVESTMENT COMPANY

Article 12. Rights and obligations of shareholders

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a. The right to fair treatment. Each share brings its holder equal rights, obligations, and interests;

b. The right to free transfer of shares, unless the transfer is restricted as prescribed by law and the charter of the investment company;

c. The right to receive all periodic and irregular information about activities of the investment company;

d. The right and obligation to attend meetings of the General meeting of shareholders, and to vote directly or via a representative or from a distance;

dd. b. The obligation to pay for the shares within the period prescribed in the charter of the investment company, the prospectus, and the responsibility for the financial obligation of the investment company within the paid amount when buying shares;

e. Other rights and obligations as prescribed by laws on securities and the charter of the investment company..

2. The shareholders or groups of shareholder that own more than 10% of the shares outstanding for at least consecutive 06 months, or a smaller proportion prescribed in the charter, have the rights to:

a) Suggest persons for the Board of Directors. The order and procedure for suggestion are specified in relevant laws on enterprises and securities applicable to public companies;

b) Consider and make copies of the records and resolutions of the Board of Directors, annual financial statements, and reports of the supervisory bank on activities of the investment company;

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- There is evidence that the asset management company or supervisory bank violates the rights of shareholders, obligations of the asset management company, the supervisory bank, or make decisions beyond the authority which is prescribed in the charter of the investment company, the supervision contract, or delegated by the General meeting of shareholders, and cause damage to the investment company;

- The tenure of the Board of Directors (06 months) is over, and no voting is held;

- Other cases prescribed in the charter of the investment company.

d) Request the asset management company and supervisory bank to explain the unusual issues related to the assets, the management, and transactions of assets of the investment company. The asset management company and supervisory bank must send written reply to the shareholder within 15 days from the date on which written request is received.

dd) Suggest bringing issues to the meeting of the General meeting of shareholders. Suggestions must be made in writing and sent to the asset management company at least 03 working days before the opening date, unless otherwise prescribed by the charter of the investment company;

e) Other rights and obligations as prescribed by the charter of the investment company.

3. Requests and suggestions made by shareholders or groups of shareholders as prescribed in Clause 2 of this Article must be made in writing and contain the full names addresses, ID numbers, passport numbers, or numbers of other ID papers, applicable to individuals; name and address of the head office, nationality, number of the decision on establishment, or number of business registration, applicable to organizations; the holding, and the time of holding of each shareholders, the amount of shares of the whole group, and the ownership proportion of the shares outstanding of the investment company; the contents, the foundations, and the reasons. When convening the irregular General meeting of shareholders as prescribed in Point c Clause 2 of this Article, it is required to provide the documents verifying the reasons for convening the irregular General meeting of shareholders; or the documents, proof about the violations committed by the asset management company or supervisory bank, the extent of violations, or the decisions beyond their authority as prescribed in the charter of the investment company or the supervision contract.

Article 13. The General meeting of shareholders

1. The General meeting of shareholders of an investment company is convene by the asset management company, and shall decide:

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b. The changes of the investment policies and targets, the ownership ratio of foreign investors in the investment company; the changes of the profit distribution plan; the increase of the payment to the asset management company and supervisory bank; the replacement of the asset management company and supervisory bank;

c. The merger, amalgamation, dissolution, capital increase; and expansion of the operation of the investment company;

d. The approval for the contracts and transactions between the investment company and the shareholders that own more than 35% of shares outstanding, their representatives, and members of the Board of Directors of the investment company. In this case the shareholders having relevant benefits must not vote. The contracts and transactions are approved when a number of shareholders that represent at least 65% of the votes agree;

dd. The election and dismissal of the President and members of the Board of Directors; the wages and operating cost of the Board of Directors; the selection of the accredited audit organization to audit annual financial statements, and the selection of independent valuation organizations (if any); and the approval for the Financial statements, the annual reports on assets and operation of the investment company;

e. Examine and handle the violations committed by the asset management company, the supervisory bank, and members of the Board of Directors that cause damage to the investment company.

g. Other issues within its authority as prescribed by laws on enterprises, securities, and by the charter of the investment company.

2. The agenda of the General meeting of shareholders is established by the asset management company in accordance with laws on enterprises. The annual General meetings of shareholders shall be held within 30 days from the date on which the annual financial statement audited by an accredited audit organization is available.

3. The asset management company shall convene irregular the General meetings of shareholders of the investment company in the following cases:

a. At the request of the supervisory bank, or the Board of Directors of the investment company finds it necessary for the benefits of the investment company;

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c. Other cases prescribed in the charter of the investment company.

4. The irregular General meeting of shareholders shall be held within 30 days from the date on which the asset management company receives the request for convening the irregular General meeting of shareholders. At least 15 days before the General meeting of shareholders, the asset management company must send the State Securities Commission the meeting agenda and relevant documents, and provide information about the irregular General meeting of shareholders, specifying the reasons and targets of the meeting.

5. Where the asset management company fails to convene the General meeting of shareholders of the securities company as prescribed in Clause 3 and Clause 4 of this Article, the asset management company shall take responsibility before law, and pay compensation for the damage to the investment company (if any). Where the asset management company fails to convene the General meeting of shareholders of the securities company as prescribed in Clause 3 within the next 30 days, the Board of Directors or supervisory bank shall convene the General meeting of shareholders as prescribed in this of this Circular, in lieu of the asset management company.

Article 14. The conditions and procedures for holding meetings and passing  decisions of the General meeting of shareholders

1. The asset management company shall formulate and post the conditions and procedure for convening, opening meetings, and passing decisions at the General meeting of shareholders of the investment company in accordance with the laws on enterprises and the charters of the investment company, including:

a) The notice of convening the general meeting, specifying the deadline for sending notices and receiving votes when seeking written opinions from shareholders; and the procedure for registering for attending the general meeting;

b) The procedure for voting, counting votes, and announcing vote results;

c) Making and passing the Minutes of the General meeting of shareholders; disclosing the resolution of the General meeting of shareholders; the procedure for raising protests against the resolution of the General meeting of shareholders.

2. The General meeting of shareholders of the investment company shall be opened when it is attended by a number of shareholders that represent at least 51% of the shares outstanding. the participation may be direct, authorized, or online via communication devices according to the charter of the investment company.

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4. Where the first meeting is not able to be opened as prescribed in Clause 2 of this Article, the second one shall be convene within 30 days from the anticipated opening day of the first one. In this case the General meeting of shareholders shall be held regardless of the number of participants.

5. Unless the annual General meeting of shareholders or General meeting of shareholders is to seek opinions on the issues prescribed in Points b, c, and d Clause 1 Article 13 of this Circular, the asset management company may obtain written opinions from the shareholders of the investment company, instead of holding the General meeting of shareholders. The rules, order, and procedure for seeking written opinions must be specified in the charter of the investment company, and conformable with the principles in the laws on enterprises. In this case, the asset management company must abide by the deadline for sending meeting documents and forms in a similar way to convening the General meeting of shareholders.

6. When seeking written opinions of the General meeting of shareholders, the decisions of the General meeting of shareholders shall be passed they are approved by a number of shareholders that represent at least 75% of the total number of votes.

7. The asset management company and the Board of Directors of the investment company shall examine and ensure that all resolutions of the General assembly of shareholders of the investment company are conformable with law and the its charter.  Where a decision of the General assembly of shareholders is not conformable with law and the charter of the investment company, a General meeting of shareholders shall be held to seek opinions, or written opinions shall be obtained.

8. Within 07 days from the ending day of the General assembly of shareholders, or after finishing obtaining written opinions as prescribed in Clause 5 of this Article, the asset management company shall send the record and the resolution of the General assembly of shareholders to the investment company, the supervisory bank, and provide information to shareholders as prescribed in Clause 10 Article 3 of this Circular.

Article 15. The Board of Directors of a public investment company

1. The Board of Directors of a public investment company must comply with Article 80 of the Decree No. 58/2012/ND-CP.

2. The Board of Directors of a public investment company must have:

a. At least an independent member proficient and experienced in accounting and audit.

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c. At least a member proficient in law.

3. The Board of Directors of a public investment company has the following rights and obligations:

a) To represent the interests of shareholders; carry out activities in accordance with laws to protect the interests of shareholders;

b) To approve the valuation book, the list of quotation providers as prescribed in Clause 3 Article 10 of this Circular, the list of banks that receive deposits from the investment company as prescribed in Clause 3 Article 9 of this Circular; to accept the transactions prescribed in Point b Clause 11 Article 9 of this Circular; to approve the application for the issue of additional shares, and relevant contents within the authority delegated;

c) To decide the dividends according to the profit distribution plan prescribed in the charter of the investment company, or passed by the General assembly of shareholders; the time and method of profit distribution;

d) To decide the issues that are not agreed by both the asset management company and the supervisory bank according to law;

dd) To request the asset management company and the supervisory bank to provide adequate documentation and information about the asset management and supervision; and exercise other rights and obligations as prescribed by the laws on securities and company administration, applicable to public companies, and the and in accordance with the charter of the investment company;

e) Other issues within the authority as prescribed by laws on enterprises, securities, and by the charter of the investment company.

4. Board of Directors meetings shall be held when they are attended by at least 2/3 of the members, the number of independent members among which must make up the at least 51% of the participants. The members that do not attend the meeting directly may vote in writing. The decisions of the Board of Directors shall be passed when they are approved by the majority of members and the majority of independent members.

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Article 16. Increase and decrease of charter capital, and the mandatory changes of the public investment company

The increase and decrease of charter capital, and the mandatory changes of the investment company must comply with Article 82 and Article 86 of the Decree No. 58/2012/ND-CP, and other relevant law regulations.

Article 17. The amalgamation and merger of public investment companies

1. Apart from the principles in Clause 1 Article 83 of the Decree No. 58/2012/ND-CP, the amalgamation and merger of investment companies must ensure that:

a. The information about the amalgamation and merger is promptly, adequately, and accurately provided for shareholders by the asset management company and the Board of Directors of the investment company;

b. The interests and obligations are settled according to the agreements among the parties in a voluntary and lawful manner.

2. The shareholders that protest against the amalgamation or merger are entitled to request the investment company to repurchase their shares. The repurchase price shall be agreed by both parties based on the net asset value per share at the repurchase time. The creditors are entitled to request the investment company to repay the loans before the amalgamation or merger.

3. Within 60 days from the date on which the General assembly of shareholders of last the investment company in the amalgamation or merger passes the decision on the amalgamation or merger, the investment company shall send the State Securities Commission a written request for the issue or the adjustment of the License for establishment and operation of the transferee company.

4. The documentation, order, and procedure for the issue or adjustment of the License for establishment and operation of the transferee company must comply with Clause 2 and Clause 3 Article 83 of the Decree No. 58/2012/ND-CP. The amalgamation or merger plan, and the amalgamation or merger contract must comply with the templates in Annex 09 and 10 enclosed with this Circular.

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a. The transferor companies no longer exist, and the transferee company shall inherit all assets, debts, lawful rights and interests, and other obligations from the transferor companies.

b. Shareholders of the transferor companies shall receive assets in the form of shares from the transferee company at the conversion rate determined on the amalgamation or merger date;

c. The shares of the transferor companies shall be annulled on the amalgamation or merger date.

6. Within 07 days from the amalgamation or merger date, the asset management company shall disclose the information about the completion of the amalgamation or merger as prescribed in Clause 10 Article 3 of this Circular. The information disclosed includes:

a) The amalgamation or merger date;

b) The rules for determining the net asset value per share of the transferor companies on the amalgamation or merger date; the conversion rate, and the par value per share (if any).

7. From the amalgamation or merger date, the supervisory bank is responsible for:

a. Receiving all the books, documentation, list of securities, and other assets relevant to the transferor companies;

b. Receiving and inheriting all the lawful rights and interests, financial obligations, debts including tax debts, and the outstanding economic contracts from the transferor companies;

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d. Fulfilling the obligations of the transferor companies on behalf of the transferee companies as prescribed by law.

8. The public investment company shall report the amalgamation and merger results in accordance with Clause 4 Article 83 of the Decree No. 58/2012/ND-CP. The report on the amalgamation or merger results shall be made in accordance with the templates in Annex 12 enclosed with this Circular.

Article 18. Extending the deadline for operation and dissolution of public investment companies

1. The extension of the operating period of an investment company must comply with the following regulations:

a) The extension of the operating period of the investment company is passed by its General assembly of shareholders;

b) The net asset value of the investment company on the latest valuation date, before the extension application is submitted, does not fall below 50 billion VND.

2. The asset management company shall apply for the extension at least 30 days before the operating period of the investment company is over. The application for the extension of the operating period of an investment company must include:

a) The notice of the extension of the operating period of the investment company according to the template in Annex 13 enclosed with this Circular;

b) The Minutes and Resolution of the General meeting of shareholders of the investment company on the extension of its operating period, specifying the extension length.

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d) The detailed investment portfolio and report on the net asset value of the investment company (certified by the supervisory bank) on the latest valuation date.

3. The application for the extension of the operating period of the investment company shall be made in 01 original dossier, enclosed with computer files.  The original dossier shall be sent to the State Securities Commission directly or by post.

4. Within 15 days from the date on which the complete and valid dossier is received as prescribed in Clause 2 of this Article, the State Securities Commission shall issue the adjusted License for establishment and operation to the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

5. The investment company shall be liquidated and dissolved in the following cases:

a) Its net asset value falls below 10 billion VND in 06 consecutive months;

b) The cases prescribed in Clause 1 Article 84 of the Decree No. 58/2012/ND-CP.

6. The General meeting of shareholders may appoint an independent audit organization, as prescribed in Clause 3 Article 84 of the Decree No. 58/2012/ND-CP, to inspect, assess, and supervise the liquidation and valuation, verify the validation and the distribution of assets of the investment company among its shareholders; or to maintain the incumbent Board of Directors in order to supervise the liquidation and asset distribution.

7. The General meeting of shareholders shall decide the dissolution date of the investment company. From the date on which the dissolution decision is made, the asset management company and the supervisory bank may not:

a) Make investments and purchase assets for the investment company;

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c) Donate the assets of the investment company to other organizations and individuals;

d) Pay contracts in which the value of the obligations of the investment company is greater than the value of the obligations of the other party; or repay debts to the creditors that are debtors of the investment company without offsetting;

dd) Make other transactions for the purpose of selling assets of the investment company;

e) Other forbidden acts prescribed by the laws on enterprises.

8. The documentation, order, and procedure for requesting the State Securities Commission to initiate the dissolution of the investment company are specified in Clause 4 and Clause 5 Article 84 of the Decree No. 58/2012/ND-CP. The written request for the dissolution of the investment company is made in accordance with the template in Annex 13 enclosed with this Circular.

9. Within 24 hours after the written request for initiating the procedure for the liquidation and dissolution is made, the investment company, asset management company, and supervisory bank are responsible for providing information as prescribed in Clause 10 Article 3 of this Circular. Concurrently, the asset management company shall follow the procedure for delisting, canceling share registration under the guidance of the Stock Exchange and the Vietnam Securities Depository.

10. The asset management company and supervisory bank are responsible for liquidating and distributing assets of the investment company among its shareholders according to the plan passed by the General meeting of shareholders, ensuring the best interests of such shareholders  When a investment company is dissolved as prescribed in Point a Clause 1 Article 84 of the Decree No. 58/2012/ND-CP, the supervisory bank is responsible for liquidating and distributing assets of the investment company. The deadline for liquidating assets of the investment company is specified in the dissolution plan passed by the General meeting of shareholders, but must not exceed 02 year from the date on which the written approval for the liquidation and dissolution is obtained. While the investment company is liquidating its assets to for dissolution, the managing cost, supervising cost, and other costs shall be collected in accordance with the tariff passed by the General meeting of shareholders. After the dissolution, asset management company shall monthly provide shareholders with information about the payment rate per shareholder, the expenses arising in the period, the remaining net asset value of the investment company, the remaining net asset value per share, and the value of assets distributed to shareholders, according to the templates in Annex 17 enclosed with this Circular. The notice sent to shareholders must be provided to the State Securities Commission, together with the reports on assets and investment portfolio of the investment company, according to the template in Annex 18 enclosed with this Circular.

The liquidation result must be certified by the supervisory banks and the asset management company (if any), and approved by an independent audit organization or the Board of Directors.

11. The liquidation of assets being listed or registered share shall be carried out via the transaction system of the Stock Exchange, or using other methods, in order to ensure the best interests of the investment company, and the conformity with the dissolution plan passed by the General meeting of shareholders.

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12. When written requests are made by shareholders, the asset management company or supervisory bank may transfer the portfolio to shareholders in proportion to their holdings in the investment company, on the following principles:

a) The portfolio transferred to shareholders must cover all assets in the portfolio of the investment company, and the structure of each asset is similar to the portfolio of the investment company according to the asset liquidation and distribution plan;

b) The assets being centrally deposited or registered shares shall be transferred to shareholders by the asset management company or supervisory bank, under the guidance of the Vietnam Securities Depository;

For other assets of which the ownership must be registered, the asset management company and the supervisory bank shall request the capital receiver, the issuer, and the organization in charge of the shareholder book to register the shareholders’ ownership of such assets. The payment is done after the shareholders’ ownership is registered.

13. The amount collected from the liquidation of the assets of the investment company and other assets shall be paid in the following order of priority:

a) The financial obligations to the State;

b) The amounts payable to the asset management company and supervisory bank, other amounts payables, and the dissolution expense.  Where the dissolution of the investment company is compulsory as prescribed in Point a and Point b Clause 1 Article 84 of the Decree No. 58/2012/ND-CP, the investment company may not pay the fees stated in the contract to the asset management company or supervisory bank from the day on which the event occurs;

c) The remaining assets shall be used to make payments to shareholders in proportion to their contributions to the investment company. In case asset ownership is registered, the asset management company and supervisory bank shall request the Vietnam Securities Depository, the organization in charge of the shareholder book, the issuer, the capital receiver (for capital contributions and non-deposited securities) to distribute and register the shareholders’ ownership of assets.

14. Within 05 working days from the ending day of the dissolution, the asset management company or the supervisory bank (in the absence of the asset management company) shall provide information about the completion of the liquidation, distribution, and dissolution of the investment company as prescribed in Clause 10 Article 3 of this Circular, and notify the dissolution result to the State Securities Commission, including the following documents:

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b) The report, which is certified by the asset management company, the supervisory bank, the audit organization, or the Board of Directors (if any), on the liquidation process, the method of asset distribution and liquidation, the total asset value collected after the liquidation, the total debt payable, and the remaining assets for distributing to shareholders. Where assets distributed by the investment company are not cash, the documents must include the certification made by the Vietnam Securities Depository of the completion of share registration and distribution to shareholders at the request of the asset management company, the supervisory bank, and shareholders; the certification made by the organization in charge of the shareholder book, the issuer, and the enterprises that receive investments from the investment company, of the completion of the transfer of share ownership and capital contributions to each shareholders at the request of the asset management company;

c) The original License for establishment and operation of the investment company;

d) The report on verifying the asset liquidation, made by an audit organization appointed by the General meeting of shareholders, or made by the Board of Directors (if any).

15. In case the report on the dissolution result is not accurate and/or contain fabricated documents, the asset management company, the supervisory bank, relevant organizations and individuals shall be jointly responsible for paying the outstanding debts, and take personal responsibility before law for the consequences that arise within 03 years from the date on which the report is sent to the State Securities Commission.

Article 19. Revoking the License for establishment and operation of a public investment company

The revocation of the License for establishment and operation to a public investment company is specified in Article 85 of the Decree No. 58/2012/ND-CP.

Chapter III

PRIVATE INVESTMENT COMPANIES

Section 1. THE ESTABLISHMENT OF PRIVATE INVESTMENT COMPANIES

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1. Conditions for issuing the License for establishment and operation to a private investment company:

a) Clause 1 Article 87 of the Decree No. 58/2012/ND-CP shall apply to the private investment companies that delegate the capital management;

b) Clause 2 Article 87 of the Decree No. 58/2012/ND-CP shall apply to the private investment companies that manage their capital themselves.

2. If the charter of the investment company allows, shareholders may make contributions from listed and registered securities at the Stock Exchange. The contributions from securities must ensure that:

a) The contributors are not restricted from transferring the securities planned to be contributed to the investment company; the securities are not collateral being pledged, mortgaged, deposited, or blocked in other collateral transactions as prescribed by civil laws;

b) The securities contributed to the investment company are conformable with the charter of the investment company, congruent with the investment targets and investment policies of the investment company; are not suspended nor delisted, nor securities of issuers that are put into liquidation, dissolution, or bankruptcy;

c) The contributions make from securities must be approved by all shareholders of the investment company, and only consider complete after the lawful ownership of each contributed security is transferred to the investment company. The ownership transfer must comply with the guidance of the Vietnam Securities Depository;

d) The valuation of contributed securities must be conformable with the charter of the investment company, and Annex 07 enclosed with this Circular. The prices of securities being contributed to the private investment company shall be determined by the depository bank based on the closing prices on the date on which the procedure for transferring the ownership is completed

3. The documentation, order, and procedure for issuing the License for establishment and operation to a private investment company are specified in Article 88 of the Decree No. 58/2012/ND-CP. The application for the License for establishment and operation shall be made in accordance with the template in Annex 06 enclosed with this Circular; When making contributions from securities, the application for the License for establishment and operation must be enclosed with the following documents:

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b) The asset valuation record made by the depository bank.

Section 2.  ACTIVITIES OF INVESTMENT COMPANIES

Article 21. Activities of private investment companies

1. The activities of investment companies must comply with Clause 1 Article 89 of the Decree No. 58/2012/ND-CP.

2. When making investments in real estate, the investment company must appoint an independent valuation organization. The independent valuation organization must:

a) Be a valuation enterprise as prescribed by laws on valuation, or a real estate trader licensed to valuate real estate as prescribed by laws on real estate trading.

b) Not be a person related to the asset management company or supervisory bank; not be a person related to the partners in the transactions of the real estate being valuated;

c) Have at least 03 employees that have the valuer's certificate or real estate valuer's certificate.  These employees must have at least 05 years of experience of real estate valuation;

3. If the prospectus of the investment company allows, the investment company may take loans from the depository bank or supervisory bank in the following manners:

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b) Running up an overdraft loans up to the limit passed by the General meeting of shareholders;

c) Taking loans or giving loans of securities if permitted by law;

d) The sales that guarantee to repurchase securities.

4. The investment company must ensure that the total debts and amounts payable do not exceed 30% of the total asset value of the investment company at the time of taking loans.

Article 22. The net asset value and distribution of profit of private investment companies

1. The investment company or the asset management company (if any) must determine the net asset value of the investment company and the net asset value per share. The determination of net asset values shall be done by the securities company in accordance with Article 10 of this Circular.

3. The distribution of profit of private investment companies must comply with Article 11 of this Circular and relevant laws.

Section 3. ORGANIZATION OF PRIVATE INVESTMENT COMPANIES

Article 23. Rights and obligations of shareholders

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Article 24. The General assembly of shareholders and the Board of Directors

1. The General meeting of shareholders and the Board of Directors of a private investment company must comply with the relevant regulations in Article 13, Article 14, and Article 15 of this Circular, and the laws on enterprises.

2. The General meeting of shareholders and the Board of Directors of a private investment company must comply with its charter and, the laws on enterprises and securities applicable to listed companies.

Article 25. Personnel of private investment companies that managed their own capital

1. The Director, Deputy Director, and operators of the investment company that manage its own capital must:

a) Have worked for totally 05 years at the positions related to securities trading in finance, banking, insurance organizations, or in finance, accounting, or investment department in other enterprises;

b) Have Licenses for asset management, or:

- Have obtained Licenses for security trading in member states of OECD; or have worked in asset management overseas; or

- Have obtained the Certificate of Chartered Financial Analyst level II (CFA), Certified International Investment Analyst – Final level (CIIA), Association of Chartered Certified Accountants (ACCA), Certified Public Accountants (CPA), Certificate in Quantitative Finance, or Quantitative Risk Management.

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3. An investment company that makes investments in real estate must have at least one employee that:

a) Has the License for real estate valuation as prescribed by laws on real estate trading, and has worked for at least 02 years in real estate valuation for real estate trading organizations, real estate service providers, valuation organizations; or

b) Has the valuer's license, or passed the tests on the following subjects in the examination in valuation: (i) pricing foundation; (ii) valuation method and principles; (iii) real estate valuation; and (iv) enterprise valuation.

Section 4. MANDATORY CHANGES AND RESTRUCTURING OF PRIVATE INVESTMENT COMPANIES

Article 26. Increase and decrease of charter capital of private investment companies

1. The offering of private shares to increase the capital of the investment company must:

a) Be passed by the General meeting of shareholders;

b) Have a plan for offering private shares which is passed in the latest General meeting of shareholders;

c) Comply with Point b Clause 1 Article 87 of the Decree No. 58/2012/ND-CP;

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2. The decrease of the capital of the investment company must:

a) Comply with Points a, b, and c Clause 1 of this Article;

b) The payment must ensure that the charter capital and net asset value of the investment company after the adjustment do not fall below 50 billion VND;

3. The order and procedure for making single and additional issues to existing shareholders must comply with the laws on securities and enterprises.

4. Within 10 days after the increase or decrease of the charter capital, the investment company must report the result to the State Securities Commission. The report includes:

a) The written request for adjusting the charter capital;

b) The meeting minutes and decision made by the General meeting of shareholders or the Board of Directors to approve the increase or decrease of the charter capital of the investment company;

c) The adjusted prospectus or charter of the investment company (if any);

d) The certification made by the depository bank or supervisory bank of the changed capital;

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e) When making issues to new shareholders, the following documents must be added:

- For individuals: Personal profiles of shareholders, the valid copy of the Certificate of Trading code registration (applicable to foreign shareholders);

- For organizations: the valid copy of the License for establishment and operation, the Certificate of Business registration (if any) or the equivalent; the charter, the meeting minutes enclosed with the resolution of the General meeting of shareholders or the Board of Directors in accordance with regulations of the charter, the Member assembly, or the owner on the contributions to investment companies and the appointment of representatives of contributions, the power of attorney, and personal profiles of the representatives; the written approval of the competent State management agencies as prescribed by law; the valid copy of the Certificate of Trading code registration (applicable to foreign organizations);

5. The documents prescribed in Clause 4 this Article shall be made into 01 original dossier, and enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

6. Within 07 days from the date on which the complete and valid dossier is received, the State Securities Commission shall adjust the License for establishment and operation to the investment company. The adjusted license must specify the charter capitals before and after the adjustment of the contributions or payments.

Article 27. Changes subject to approval of a private investment company

1. The changes of the name, the asset management company, the depository bank, or the supervisory bank of the investment company must be approved by the State Securities Commission.

2. The application for the changes prescribed in Clause 1 of this Article includes:

a) The written application for the changes made in accordance with the template in Annex 08 enclosed with this Circular;

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c) When replacing the asset management company, depository bank, or supervisory bank, the investment company must provide their commitments to handover the rights and obligations to the alternative asset management company, depository bank, or supervisory bank.

3. The documents prescribed in Clause 2 this Article shall be made into 01 original dossier, and enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

4. Within 15 days from the date on which the complete and valid dossier is received, the State Securities Commission shall issue a written approval for the changes of the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

Article 28. The amalgamation and merger of private investment companies

1. An investment company shall be amalgamated or merged with other private investment companies when:

a) The amalgamation or merger has been approved by General meeting of shareholders;

b) The amalgamation or merger plan, and the amalgamation or merger contract have been approved by General meeting of shareholders. The amalgamation or merger plan, the amalgamation or merger contract must comply with the templates in Annex 09 and 10 enclosed with this Circular.

c) When swapping stocks together with pay cash, the shareholders of the transferor company shall receive an amount which does not exceed 10% of the net asset value per share on the amalgamation or merger day;

d) The shareholders that protest against the amalgamation or merger may request the transferor company to repurchase their shares at a price agreed by both parties based on the net asset value per share on the repurchase date. Creditors may request the debt repayment  before the amalgamation or merger. The order and procedure for requesting the share repurchase or debt repayment must comply with the laws on enterprises;

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2. Within 60 days from the date on which the General assembly of shareholders of last the investment company approves the amalgamation or merger, the transferee company shall send the State Securities Commission an application for the issue or the adjustment of the License for establishment and operation.

3. The application in Clause 2 of this Article includes:

a) The written request for the issue/adjustment of the License for establishment and operation, made in accordance with the template in Annex 11 enclosed with this Circular, enclosed with the original Licenses for establishment and operation of the transferor companies;

b) The decision of the General meeting of shareholders on the amalgamation or merger, including the meeting minutes and resolution of General meeting of shareholders;

c) The list of creditors that request the repayment, and the amount payable to them; the list of shareholders that request the share repurchase, the amount of shares to be repurchased, and the payment;

d) In an amalgamation, the following documents must be included: the charter, the prospectus of the amalgamated company, the depository and supervision contracts passed by General meeting of shareholders;

dd) The list of shareholders, members of the Board of Directors, the Director of the transferee company, made in accordance with the templates in Annex 15 enclosed with this Circular, and other relevant documents as prescribed in Point e and Point g Clause 1 Article 88 of the Decree No. 58/2012/ND-CP.

4. The documents prescribed in Clause 3 of this Article shall be made into 01 original dossier, and enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

5. Within 15 days from the date on which the complete and valid dossier is received, the State Securities Commission shall issue or adjust the License for establishment and operation of the transferee company. The refusal must be notified and explained in writing by the State Securities Commission.

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a) The transferor companies no longer exist, and the transferee company shall inherit all assets, debts, lawful rights and interests, and other obligations from the transferor companies.

b) Shareholders of the transferor companies shall receive assets in the form of shares from the transferee company at the conversion rate determined on the amalgamation or merger date;

c) The shares of the transferor companies shall be annulled on the amalgamation or merger date.

7. Within 07 days from the amalgamation or merger date, the asset management company shall disclose the information about the completion of the amalgamation or merger as prescribed in Clause 10 Article 3 of this Circular. The information disclosed includes:

a) The amalgamation or merger date;

b) The rules for determining the net asset value of a share of the transferor companies on the amalgamation or merger date; the conversion rate, and the par value per share (if any).

8. Within 30 days from the amalgamation or merger date, the transferee company shall report the result of the amalgamation or merger to the State Securities Commission. The report includes:

a) The certification made by the depository bank or supervisory bank of the total asset value, total debt value, and net asset value on the amalgamation or merger date, the conversion rate, the par value per share (if any), 

b) The written certification of competent State management agencies that the relevant investment companies have returned the seals, the seal registration certificates, and tax code registration certificates.

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1. An investment company shall be dissolved under the decision of General meeting of shareholders in the following cases:

a) The investment management contract is terminated, or the asset management company is dissolved, bankrupted, or has its License revoked, and the Board of Directors of the investment company fails to appoint an alternative asset management company within 60 days from the occurrence of the event;

b) The depository or supervision contract is terminated, or the depository bank or supervisory bank is dissolved, bankrupted, or has its License revoked, and the Board of Directors of the investment company fails to appoint an alternative depository bank or supervisory bank within 60 days from the occurrence of the event;

c) The net asset value of the investment company falls below 10 billion VND in 06 consecutive months;

d) The operating period in the charter of the investment company is over;

dd) Other cases prescribed in the charter of the investment company.

2. The General meeting of shareholders may appoint an independent audit organization to inspect, assess, and supervise the liquidation, verify the validation and the distribution of assets of the investment company among its shareholders, ensuring that the investment company is liquidated and dissolved in a fair and open manner.

3. From the date on which the investment company decides or is compelled to dissolve, the investment company, the asset management company (if any), the depository bank, and the supervisory bank may not carry out the forbidden activities prescribed by the laws on enterprises.

4. Within 07 days from the dissolution date prescribed in Clause 1 of this Article, the asset management company shall send an application for initiating the dissolution procedure. The application for initiate the dissolution procedure includes:

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b) The meeting minutes and resolution of the General meeting of shareholders on the dissolution of the investment company;

c) The plan for liquidating and dissolving the investment company passed by the General meeting of shareholders;

d) The written commitments  made by the asset management company (if any), the depository bank, and the supervisory bank to complete the procedure for liquidating and dissolving the investment company.

5. The documents prescribed in Clause 4 of this Article shall be made into 01 original dossier, and enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

6. Within 15 days from the date on which the complete and valid dossier is received, the State Securities Commission shall issue a written approval for initiating the procedure for liquidating and dissolving the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

7. The Boards of Directors of the investment company, asset management company (if any), depository bank, and supervisory bank are responsible for liquidating and distributing assets of the investment company among its shareholders according to the plan approved by General meeting of shareholders. The deadline for liquidating assets of the investment company is specified in the dissolution plan passed by the General meeting of shareholders, but must not exceed 02 year from the date on which the approval for the liquidation and dissolution is obtained. The liquidation result must be certified by the depository bank or supervisory bank, and verified by the Board of Directors of an audit organization appointed by the General meeting of shareholders as prescribed in Clause 2 of this Article.

8. The private investment company, the asset management company (if any), the depository bank and the supervisory bank must disclose information and notify the result of the dissolution of the private investment company as prescribed in Clause 7 and Clause 8 Article 18 of this Circular.

Article 31. Revoking the License for establishment and operation of a private investment company

1. The License for establishment and operation of a private investment company shall be revoked in the following cases:

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b) The securities investments are not made within 12 months form the date of issue of the License for establishment and operation

c) It is dissolved, amalgamated, or merged.

2. The State Securities Commission shall announce the revocation of the Licenses for establishment and operation of investment companies on the website of the State Securities Commission

3. After the decision to revoke the License for establishment and operation is made by the State Securities Commission, the investment company, the asset management company (if any), the depository bank, and the supervisory bank shall initiate the procedure for liquidation and dissolution as prescribed by law.

Chapter IV

SUPERVISORY BANKS AND DEPOSITORY BANKS

Article 32. General regulations on supervisory banks

1. The supervisory bank appointed by the asset management company must satisfy the conditions in Clause 6 of this Article, Clause 1 Article 98 of the Law on Securities, and accepted by the General meeting of shareholders of the investment company.

2. The supervisory bank must be independent from the asset management company for which the bank is providing supervisory services.

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4. The supervisory bank, members of the Board of Directors, members of the Executive Board, and employees must not be partners in the sale of assets of the investment company.  The supervisory bank may only be a partner in foreign exchange transactions, or other security transactions that are done via the transaction system of the Stock Exchange.

5. Where an event occurs that make the bank no longer satisfies the conditions in Clause 1, Clause 2, and Clause 3 of this Article, the bank must notify the asset management company and the State Securities Commission within 24 hours from the occurrence.

6. The activities of the investment company must be supervised by at least 02 employees of the supervisory bank, who have all the following qualifications:

a) AA Certificate in laws on securities and securities market;

b) A basic diploma in securities and securities market, or license for trading securities, or CFA level I or above, or CIIA level I or above, or License for trading securities issued by the member states of OECD;

c) The Certificate in accounting or auditing, or a Certificate of Chief accountant, or international certificates in accounting and audit such as ACCA , CPA , CA (Chartered Accountants), ACA (Associate Chartered Accountants).

7. Within 10 days from the date on which the supervision contract takes effect, the supervisory bank shall send the State Securities Commission:

a) The supervision contract;

b) The information sheet together with the valid copies of the qualifications of the employees as prescribed in Clause 6 of this Article, who are appointed by the supervisory bank to supervise and protect assets;

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8. The documents prescribed in Clause 7 of this Article shall be made in 01 original dossier, enclosed with computer files.  The original dossier shall be sent to the State Securities Commission directly or by post.

9. Within 07 days from the date on which the complete and valid dossier is received as prescribed in Clause 8 of this Article, the State Securities Commission shall issue a written confirmation of the reception of the dossier from the supervisory bank and employees appointed by the supervisory bank  to supervise and protect the asset of the investment company.

Article 33. Activities of depository banks and supervisory banks

1. The depository bank and supervisory bank may appoint a foreign financial institution intended for asset depository as a secondary depository to deposit the overseas assets of the investment company in accordance with law. The depository authorization must comply with the following regulations:

a) The secondary depository must be a depository member as prescribed by the law of its home country;

b) The depository authorization must be made based on the contract between the depository bank, supervisory bank, and the secondary depository. The contract must specify the rights, obligations, and responsibilities of the depository bank, the supervisory bank, and the secondary depository.  The secondary depository only execute the legitimate orders or from the depository bank and supervisory bank;

c) The deposited assets must be specified that they are assets of the investment company for which the depository bank and supervisory bank are providing services;

d) The depository bank and supervisory bank are responsible for inspecting and supervising the activities of the secondary depository, and incur all the expenses related to the authorization of the supervision and asset depository of the investment company;

dd) The secondary depository overseas are entitled to redeposit assets at a securities depository of which it is a member, in accordance with the law of its home country. The assets under the ownership of the investment company must be registered by the secondary depository as prescribed by relevant laws;

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2. Responsibilities of depository banks and supervisory banks when depositing assets of investment companies:

a) Request the investment company and asset management company (if any) to register the assets of the investment company as soon as possible in accordance with the economic contract signed by the investment company and its partners, and relevant laws; ensure that all assets of the investment company that are generated within Vietnam’s territory are registered and deposited at the depository bank and supervisory bank, following the rules below:

- If the ownership of assets is registered, they shall be registered under the name of the owner being the investment company, unless they have to be registered under the name of the depository bank, the supervisory bank, the secondary depository, or the asset management company as prescribed by law, and deposited at the depository bank and supervisory bank. The original legal documents certifying the asset ownership must be deposited at the depository bank and supervisory bank, unless the securities are registered or deposited.  Where assets are real estate, the depository bank and supervisory bank must ensure adequate legal documents on the ownership and use rights as prescribed. Where assets are securities issued in the form of recording, or the transfer of ownership to the investment company is not complete, the original sale contract and the payment must be deposited at the depository bank or supervisory bank;

Where the asset ownership has not been registered, or transferred to the investment company within the period specified in the issue agreements, transfer contracts, investment contracts, or other equivalent contracts, the depository bank and supervisory bank are responsible for clarify the depository and registration of such assets in the periodic reports as prescribed in Clause 1 Article 35 and Clause 1 Article 36 of this Circular, and send a written notice to the Board of Directors of the investment company.

- Where assets are not registered, the depository bank and supervisory bank, together with the capital receiver, the issuer, the organization in charge of the shareholder register, or other equivalent organizations, shall make comparisons with the amount and value of assets of the investment company, ensuring that the asset depository is conformable with Point e Clause 1 of this Article.

- Where assets are bank deposit, the depository bank and supervisory bank are entitled and required to request the investment company and asset management company (if any) to provide information about the deposit contracts and deposit accounts of the investment company. The depository bank and supervisory bank are responsible for monthly compare the deposit account balance, the values of deposit contracts, with that of the banks that receive deposits from the investment company;

b) Assets of the investment company must be separate from that of other organizations and individuals, including assets of the depository bank and supervisory bank;

c) Unless the investment company manages its own, the asset management company shall be the authorized representative that make the transactions of the investment company. The transfer of assets of the investment company in investments or disinvestment is only carried out under written directives from the asset management company and the asset controller in accordance with the depository contract and supervisory contract;

d) The payment for the transactions of listed and registered securities must comply with the “cash on delivery” principle, and other offset and payment principles as prescribed by law. All bank transfers, payments, and asset transfer must be make to the correct partners of the investment company and its accounts. The payment value must be congruent with the asset quantity and prices, and consistent with the amounts in invoices;

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e) certify the reports on assets of the investment company, ensure that the quantity of assets in the report is correct and consistent with the assets deposited at the bank;

g) Provide adequate information in General meetings of shareholders and meetings of the Board of Directors of the investment company, but do not vote.

3. The tangible and intangible assets of the investment company, registered under the name of the investment company or not (in case the asset ownership is not registered as prescribed by law), deposited at the depository bank, supervisory bank, and secondary depository (if any) are under the ownerships of the investment company, not the depository bank, supervisory bank, or asset management company. The depository bank and supervisory bank may not use assets of the investment company to make payments and guarantee the debt repayments of them or of a third party, including the asset management company.

4. The transactions of the investment company on the account of the depository bank and supervisory bank, including money reception, payments, reception of dividends, bond interest, and other incomes must be specified that they belong to the investment company.  Where the transactions are made on the accounts or under the name of the secondary depository organization as prescribed by law, these transactions and assets therein must be specified that they belong to the investment company, via the supervisory bank.

5. The depository bank and supervisory bank must have an appropriate technical system to automatically receive, monitor, make, and pay for the asset transactions on the accounts of the investment company, unless otherwise required in written directives from the asset management company. This system must satisfy the following conditions:

a) All assets of the investment company are recorded in accounting books. All changes related to the assets must be completely, accurately, and promptly recorded;

b) The receipts and expenses, dividends, bond interest, and incomes are recorded;

c) Entries and payments for expenditures are made;

d) Receive and make entries in accounting books from the additional issues, restructuring of the issuers, and other relevant changes.

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7. The depository bank and supervisory bank are responsible for paying compensation to the investment company when the secondary depository causes loss of assets of the investment company, unless:

a) In events of force majeure, beyond the control of the depository bank and supervisory bank, in which the depository and supervision contract absolve the depository bank and supervisory bank of the responsibility.

b) The secondary depository is responsible for paying compensation to the investment company, and the secondary depository contract allows the asset management company (if any) to claim request the secondary depository to pay compensation as specified in the contract, on behalf of the investment company;

c) The depository bank and supervisory bank have fulfilled the obligations related to the authorization in accordance with law.

Article 34. Supervision activities supervisory banks

1. The supervision range is limited within the activities of the asset management company related to the investment company that the bank supervises.

2. The responsibilities of the supervisory bank for the investment supervision of the asset management company:

a) Cooperate with the asset management company in periodically reviewing the internal rules and methods for determining the net asset value of the investment company; supervising the determination of the net asset value; inspecting and ensuring that the net asset value per share of the investment company is accurate and conformable with law and the charter of the investment company.

b) Supervise the investments and transactions of assets of the investment company, ensure that the types of invested assets and the structure of the investment portfolio are conformable with the regulations on investment and loan limits as prescribed by law and the charter of the investment company; supervise the asset transactions between the investment company and asset management company and relevant persons, ensuring the conformity with law and the charter of the investment company;

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c) Supervise the progress, and inspect the result of the amalgamation, merger, dissolution, and liquidation of the investment company;

d) Supervise to ensure the legality, only make payments from the assets of the investment company for proper expenditures in accordance with law and the charter of the investment company;

dd) Supervise other activities of the asset management company in accordance with Article 98 of the Law on Securities, relevant regulations in this Circular, the documents guiding the Law on Securities, and the charter of the investment company;;

e) Verify the reports on the net asset value, investments, and investment portfolio of the investment company.

3. The supervisory bank is responsible for making and storing the documents and computer files for 10 years on order to certify the conformity of the supervisory bank to law, in accordance with Annex 16 enclosed with this Circular. These documents must be provided at the written request of the State Securities Commission.

4. The supervisory bank shall promptly provide adequate and accurate information for the asset management company, the accredited audit organization (at the written request of the asset management company) so that they could exercise all rights and fulfill all obligations to the investment company in accordance with law and the charter of the investment company.

5. The supervisory bank is entitled to request the asset management company to provide documents and information necessary for the supervisory bank to exercise all rights and fulfill all obligations to the investment company as prescribed by law. The supervisory bank is responsible for keeping the documents and information received from the asset management company confidential.

6. The supervisory bank may provide the asset management company with services of determining the net asset value of the investment company. The personnel and database of the department that provide services of determining the net asset value in must be must be separate from the supervision and sale departments of the supervisory bank. The department that provide services of determining the net asset value must have an employee holding the Chief accountant certificate or audit certificate of accounting certificate, or international certificates in accounting such as ACCA, CPA, CA, and ACA.

7. In case the asset management company fails to restore the position of the investment company within the period prescribed in Clause 6 and Clause 7 Article 10 of this Circular, the supervisory bank shall send a report to the State Securities Commission within 07 days from the date on which the supervisory bank sends the notice to the asset management company. In this case, the supervisory bank is entitled to only execute the legal orders and executives of the asset management company without have the investment portfolio of the investment company violating the law and the charter of the investment company.

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1. The depository bank and supervisory bank shall have their rights and obligations to the investment company terminated in the following cases:

a) The depository bank and supervisory bank are divided, split, dissolved, bankrupted, amalgamated, merged, having its legal status changed, or having their Certificate of Security depository registration revoked, as prescribed in Clause 2 Article 51 of the Law on Securities;

b) The depository or supervision contract is unilaterally terminated;

c) The investment company has passed its operating period, or is dissolved, amalgamated, or merged;

d) The termination is decided by the General meeting of shareholders of the investment company.

2. When replacing depository bank and supervisory bank, the investment company shall send a report to the State Securities Commission, enclosed with the following documents:

a) The notice of the replacement of the supervisory bank or depository bank, specifying the reasons, together with the commitment made by the depository bank or supervisory bank to completely hand the rights and obligations to the assets of the investment company over to the alternative bank;

b) The meeting minutes and decision of the General meeting of shareholders on the replacement of the depository bank or supervisory bank, specifying the alternative one; the approval for the plan for transferring assets from the old depository bank or supervisory bank to the alternative one;

c) The depository principle contract, and the supervisory principle contract signed with the alternative depository bank or supervisory bank;

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dd) The plan for handing over the rights and obligations between the banks, even during the handover, and the methods for resolving the issues concerning the rights and obligations of relevant parties.

3. The documents prescribed in Clause 2 of this Article shall be made into 01 original dossier, enclosed with computer files. The original dossier shall be sent to the State Securities Commission directly or by post.

4. Within 10 days from the date on which the complete and valid dossier is received as prescribed in Clause 2 of this Article, the State Securities Commission shall change the supervisory bank or depository bank in the License for establishment and operation of the investment company. The refusal must be notified and explained in writing by the State Securities Commission.

5. In the cases prescribed in Clause 1 and Clause 2 of this Article, the rights and obligations of the old supervisory bank or depository bank to the investment company shall be transferred to the alternative banks as prescribed in Article 86 of the Decree No. 58/2012/ND-CP. The depository bank or supervisory bank only terminates the contract after finishing transferring all rights and obligations to the alternative banks. The alternative supervisory bank or depository bank must make and send the handover record to the State Securities Commission, certified by the asset management company and the Board of Directors of the investment company. \

6. Within 10 days from the date on which the replacement of the depository bank or supervisory bank prescribed in Clause 3 of this Article is complete, the investment company and asset management company (if any) shall disclose the information about this replacement as prescribed by relevant laws.

7. Where the depository bank or supervisory bank changes its legal status, the new bank shall inherit all rights and obligations to the assets deposited and supervised at the old one.

Chapter V

REPORTING REGIME

Article 36. Information for investors and reporting regime applicable to asset management companies and private investment companies that manage their own capital

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a) The weekly report on the changes of the net asset value of the public investment company, according to the template in Annex 17 enclosed with this Circular;

b) The report on the investments (including information about assets) made by the public investment company and private investment company, which entrust the capital management, every month, every quarter, and every year, according to the template in Annex 18 enclosed with this Circular;

c) The biannual and annual summary report on management of the public investment company and private investment company which entrust the capital management, including the basic contents in Annex 19 enclosed with this Circular;

d) The prospectus, the summary prospectus; the audited annual, biannual, and quarterly financial statements of the public investment company and private investment company which entrust the capital management;

2. The documents prescribed in Clause 1 of this Article must be provided free of charge for shareholders on the website of the asset management company, or directly sent via email to shareholders, or in other form as prescribed in the charter of the public investment company and the prospectus.

3. Shareholders may refuse the documents prescribed in Clause 2 of this Article. At the request of shareholders, the asset management company must provide the risk management process, specifying the investment limits, the precautionary measures and risk management methods to manage assets of the public investment company.

4. The private investment company that manage their own capital must provide information to investors and send the following reports to the State Securities Commission:

a) The reports prescribed in Point b and Point d Clause 1 of this Article;

b) The report on the transfer of shares among the shareholders within 15 days from the date on which the transfer is complete. The report specifying the list of shareholders (before and after the transfer); the amount of shares (before and after the transfer); the ownership of shares (before and after the transfer); the changes of shares, and the method of share transfer.

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a) The replacement and designation of members of the Board of Directors, the Director, Deputy Director, or employees of the investment company.  The report on the replacement, employment, and designation of personnel must be enclosed with the personal profiles of the substitute personnel and other documents certifying the eligibility of the substitute personnel as prescribed;

b) The revisions of the charter and the prospectus. The report must be enclosed with the revised charter or prospectus.

c) The events that might seriously affect the financial resources and operation of the investment company.

6. Deadlines for submitting reports:

a) For monthly reports: 05 days from the end of the month;

b) For quarterly reports: 20 days from the end of the quarter;

b) For biannual reports: 30 days from the end of the second quarter;

b) For annual reports: 90 days from the end of the fiscal year;

dd) For the reports on the events prescribed in Clause 5 of this Article: 03 days from the occurrence of those events.

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8. The asset management company and investment company must send reports to the State Securities Commission within 48 hours since the request for reporting is received as prescribed in Clause 7 of this Article.

Article 37. Reporting regime applicable to supervisory banks and depository banks

1. The supervisory bank must make and send monthly, quarterly, and annual reports to the State Securities Commission on the management of assets of the investment company carried out by the asset management company, according to the template in Annex 20 enclosed with this Circular; The report made by the supervisory bank must assess the conformity with law and the charter, in particular:

a) Assess the conformity of the asset management company in the investments and transactions of the investment company;

b) Assess the determination of the net asset value of the investment company, specifying the cases of incorrect valuation (if any);

c) The share offering of the investment company;

d) The violations (if any) committed by the asset management company, and the suggested solutions.

2. The supervisory bank shall send reports to the State Securities Commission within 24 hours from the discovery of the violations in the following cases:

a) The asset management company violates the laws on securities and securities market;

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c) Other cases at the request of the State Securities Commission.

3. Depository banks and supervisory banks must comply with the regulations applicable to asset management companies in Clause 6, 7, and 8 Article 35 of this Article.

Chapter VI

REGULATIONS ON THE IMPLEMENTATION

Article 37. Effects

This Circular takes effect on July 01^st 2013.

Article 38. Implementation organization

The State Securities Commission, asset management companies, supervisory banks, depository banks, organizations and individuals relevant to activities of investment companies are responsible for the implementation.

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PP THE MINISTER
DEPUTY MINISTER




Tran Xuan Ha