Tiếng Việt| THE STATE SECURITIES COMMISSION | SOCIALIST REPUBLIC OF VIET NAM |
| No. 05/1998/QD-UBCK3 | Hanoi, October 13, 1998 |
THE CHAIRMAN OF THE STATE SECURITIES COMMISSION
Pursuant to the Governments Decree No. 15/CP of March 2, 1993 on the tasks, powers and State management responsibility of the ministries and the ministerial-level agencies;
Pursuant to the Governments Decree No. 75/CP of November 28, 1996 on the establishment of the State Securities Commission;
Pursuant to the Governments Decree No. 48/1998/ND-CP of July 11, 1998 on securities and securities market;
At the proposal of the Director of the Securities Trading Management Department,
DECIDES:
Article 2.- This Decision takes effect 15 days after its signing.
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THE STATE SECURITIES COMMISSION
Le Van Chau
ON ORGANIZATION AND OPERATION OF SECURITIES INVESTMENT FUND AND THE FUND-MANAGING FIRM
(issued together with Decision No. 05/1998/QD-UBCK3 of October 13, 1998 of the Chairman of the State Securities Commission)
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2. The fund-management firm shall be responsible for the establishment and management of the securities investment fund and effect the investment.
3. The supervisory bank shall be responsible for supervising the fun-managing firm, preserving and keeping in custody property of the securities investment fund in order to protect the investors interests.
4. The investors shall contribute capital formulating the securities investment fund and benefit from the investment made by the securities investment fund.
Article 3.- In this Regulation, the following terms shall be construed as follows:
1. The securities investment fund (hereafter referred to as the fund for short) is a fund formulated from capitals contributed by investors, managed by the entrusted fund-managing firm and invested in securities with at least 60% of the funds asset value.
2. The closed securities investment fund (hereafter referred to as the closed fund for short) is a securities investment fund in which the investors are not entitled to resell the investment fund certificates to the fund before the expiration of operation term or the dissolution.
3. The open securities investment fund (hereafter referred to as the open fund for short) is a securities investment fund in which the investors are entitled to resell the investment fund certificates to the fund.
4. The fund-managing firm is a legal person licensed by the State Securities Commission to manage the fund.
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6. The investment fund certificate (hereafter called certificate for short) is a kind of securities issued by the fund-managing firm representing a securities investment fund, which certifies the investors right to benefit from the fund.
7. The fund manager is a person licensed to practice securities business and appointed by the fund-managing firm as manager of the securities investment fund.
8. The net value of the funds assets is the total value of the assets and investments owned by the fund minus its debt liabilities at the time of payment.
9. The quick asset is the portion of the funds assets, which is comprised of cash and other assets which can be converted into cash within 15 days.
2. Foreign securities business organizations wishing to engage in the management of securities investment funds shall have to set up joint ventures with Vietnamese partners according to the licenses granted by the State Securities Commission.
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1. A firm applying for the management of the fund shall have to meet the following requirements:
a/ Being a joint-stock company or a limited liability company, which is established under the Vietnamese laws and has a legal capital of 5 billion VND;
b/ Having a staff trained in securities operations.
c/ Having adequate material and technical foundations for the fund-managing operations.
d/ The manager of the fund-managing firm and the manager of the fund must have the practice license as prescribed in Chapter VI of this Regulation.
2. For fund-managing joint-ventures, besides the conditions defined in Clause 1, this Article, the foreign parties to the joint-ventures must be the securities business organizations lawfully operating in the countries where they are headquartered.
a/ An application for the license to conduct fund-managing operations;
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c/ The companys charter;
d/ Cirrculum vitaes of the founding members, Managing Board members and managers of the company;
e/ Valid papers proving that the company fully meets the conditions defined in Article 5 of this Regulation;
f/ A plan of operation for the first year.
2. For fund-managing joint-ventures, apart from documents prescribed in Clause 1, this Article, the following lawfully certified papers are required:
a/ The charter of the foreign company being a party to the joint venture;
b/ The license for securities business operation of the foreign party to the joint-venture;
c/ The joint-venture contract and the joint-venture companys charter;
d/ The balance sheets, the reports on revenues and the annual reports of the joint-venture parties business situations for the three latest years;
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f/ The papers included in the dossiers of joint-venture companies must be the copies lawfully certified by the notary public in the localities where the foreign parties are headquartered; and their Vietnamese versions shall be certified by the State notary public of Vietnam.
2. In case of any amendments and/or supplements to the dossiers, the dossiers-receiving date shall be counted from the date the State Securities Commission receives the amended and/or supplemented text.
3. After being granted the operation license, the fund-managing firm shall have to make its business registration as prescribed by law.
a/ The full name (in Vietnamese and in English) and the transaction name of the firm;
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c/ Operations permitted to conduct;
d/ The serial numbers and issuing dates of the establishment permit and the operation license and its term (if any);
e/ The names and surnames of the chairman of the Management Board and general director (director);
f/ The date of operation commencement;
g/ The head-office, branches and representative offices (if any).
2. In the course of business operations, the fund-managing firm shall have to post up its operation license at its head-office and branches.
3. The fund-managing firm must clearly inscribe its name and the serial number of its license on the headlines of its mails, advertisements and other transaction papers.
4. In case of amendment and/or supplement to, or renewal of, the operation license, the fun-managing firm shall have to fully observe the license announcement procedures as those for the initial operation license.
5. In case of opening or closure of its branch(es), the fund-managing firm shall have to announce the serial number and issuing date of the decision on the opening or closure of its branch(es), the main operations of the branch(es), the head-office(s) and the date of opening or closure of such branch(es) on a centrally-run newspaper and a daily of the locality where the companys branch(es) is (are) located for 05 consecutive issues.
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1. Addition to its operation functions.
2. Amendment and/or supplement to its charter.
3. Opening of new branch(es) or representative office(s); relocation of its head-office, branch(es) or representative office(s).
1. The fund-managing firms operation shall cover:
a/ Establishing and dissolving the fund;
b/ Selecting and effecting investment with the fund�s capital;
c/ Determining the value of the funds assets and the value of each certificate as prescribed in Article 44 of this Regulation;
d/ Determining the fund’s benefits and guiding the supervisory bank to divide such benefits to investors;
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f/ Conducting other activities for the benefits of investors.
2. The State Securities Commission may request the fund-managing firm to perform necessary tasks in order to protect the common interests as well as the interests of investors.
3. The fund-managing firm is entitled to carry out the securities investment consultancy if it is so licensed by the State Securities Commission. The granting, suspension and withdrawal of licenses for securities investment consultancy shall comply with the provisions in the Regulation on organization and operation of securities firms, issued together with Decision No. 04/1998/QD-UBCK3 of October 13, 1998 of the President of the State Securities Commission.
2. The fund-managing firm shall have to represent the fund in exercising rights and fulfilling obligations towards the properties on the list of the funds investments.
3. The fund-managing firm, members of its management board, its manager, the fund�s manager and relevant persons shall be entitled to buy and sell certificates only at the market prices.
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3. When trading properties for the fund, the fund-managing firm, members of its management board, its manager and the funds manager must not receive any interests other than the fees and bonuses prescribed in the funds charter for themselves or a third person.
2. The fund-managing firm shall not be allowed to use the fund’s capital and assets for investment in more than 15% of the total value of an issuing organizations securities in circulation, and must not invest more than 10% of the total value of a funds assets in the being-circulated securities of an issuing organization.
3. The fund-managing firm shall not be allowed to use capital and assets of the fund(s) under it management for the purchase of more than 49% of the total value of being-circulated securities of an issuing organization or an unlisted company.
4. The fund-managing firm shall not be allowed to use the fund’s capital and assets for lending and guaranteeing any borrowings, and not be allowed to borrow so as to provide support for the fund’s activities, except for short-term borrowing to cover necessary expenses.
5. The fund-managing firm shall not be allowed to use capital and assets of a fund for investment in real estates which exceed 10% of the value of the funds assets.
6. The fund-managing firm shall not be allowed to use capital and assets of a fund for investment in more than 10% of the stock capital of an unlisted company, and/or to invest more than 5% of the total value of a funds assets in an unlisted company.
7. The fund-managing firm shall not be allowed to invest more than 30% of the funds total assets value in various companies of the same group or a number of companies which are interrelated in term of ownership.
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9. The fund-managing firm must not use capital of a fund to invest in another fund or to buy assets of another fund, which it manager in order to increase or reduce the value of this fund.
10. For open funds, the fund-managing firm must constantly maintain the quick assets percentage stated in the fund�s charter. Such percentage must be at least equal to 20% of the funds total asset value.
11. The fund-managing firm, members of its management board, its managers and the managerial officials of the fund must not be share-holders of the supervisory bank.
2. The State Securities Commission shall accept the change of a fund-managing firm only when it deems that such change conforms to the interests of the investors.
3. The change of a fund-managing firm shall be valid only when the following documents are approved by the State Securities Commission:
a/ The transfer contract signed between the two fund-managing firms;
b/ The supervision-management contract between the new fund-managing firm and the supervisory bank.
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1. Having been licensed to be set up and operate in Vietnam;
2. Having been licensed by the State Securities Commission to conduct the securities custody activities;
3. Being entirely independent from the fund-managing firm;
4. Not possessing any property of the fund.
Article 18.- The supervisory bank shall have the responsibility:
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2. To inspect and supervise the fund management so as to ensure that it conforms to laws and the funds charter, and to protect the investors interests;
3. To effect the funds collecting and spending activities in strict accordance with the fund-managing firms guidances;
4. To certify reports made by the fund-managing firm, which are related to the funds property and operation;
5. To reports to the State Securities Commission when discovering that the fund-managing firm has carried out activities in contravention of law or the funds charter.
2. The supervisory bank must not be a customer buying and/or selling the fund�s property.
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2. The change of a supervisory bank shall be valid only when the following documents are approved by the State Securities Commission:
a/ The transfer contract between the old supervisory bank and the new one;
b/ The management supervision contract between the fund-managing firm and the new supervisory bank.
3. The change of the supervisory bank must be announced thrice consecutively on mass media as prescribed in the fund�s charter.
1. Enjoy benefits from the fund�s activities;
2. Demand the fund-managing firm to strictly observe the fund�s charter.
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1. Directly perform rights and obligations regarding the properties on the list of the fund�s investments;
2. Demand the fund-managing firm and/or the supervisory bank to submit books or transaction papers, except at the investors congress.
a/ Where there are important changes in the investment environment and the situation on the fund�s investment;
b/ Where it is so requested by the investors who own at least 10% of the total certificates in circulation.
2. The investors congress shall be convened by the supervisory bank in the following circumstances:
a/ The fund-managing firm goes bankrupt;
b/ The fund-managing firm is suspended from operation;
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3. The convening of an investors congress under the provisions of Clauses 1 and 2 of this Article must be effected within 30 days after such a circumstance takes place. Within 10 days before the investors congress, the fund-managing firm or the supervisory bank shall have to announce the convening of such congress on mass media as provided for in the Funds charter at least 03 times.
4. The expenses for organizing the investors� congress shall be paid by the fund.
Article 25.- At the investors congress, the investors shall have the rights:
1. To elect the chairman of the congress;
2. To decide on such important matters relating to the organization and operation of the fund as:
a/ Amending and/or supplementing the funds charter;
b/ Changing the fund-managing firm;
c/ Changing the supervisory bank;
d/ Dissolving the fund.
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2. Within 10 days after the investors’ congress, the fund-managing firm and the supervisory bank shall have to report the congress’s results to the State Securities Commission.
THE SECURITIES INVESTMENT FUND
2. Such a dossier shall comprise:
a/ The application for the establishment of the securities investment fund;
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c/ The management supervision contract;
d/ The prospectus.
3. Within 45 days after receiving the complete and valid dossiers of application, the State Securities Commission shall grant or refuse to grant the certificate-issuing license. In case of refusal, the State Securities Commission shall explain in writing the reason(s) therefor.
In case of amendments and/or supplements to the application dossiers, the dossier-receiving time shall be counted from the date the State Securities Commission receives the amended and/or supplemented text.
1. The funds charter must include the following main contents:
a/ The name of the fund, the name and head-office of the fund-managing firm, and the name and head-office of the supervisory bank;
b/ The number of certificates to be issued for a closed fund or the maximum number of certificates to be issued for an open fund;
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d/ Risks to be possibly borne by the fund;
e/ Method(s) of determining the value of the funds assets;
f/ The profit-sharing policy and mode of the fund;
g/ The certificates issuance, re-purchase or transaction;
h/ The registration of certificate ownership;
i/ The investors rights and obligations;
j/ The investors congress;
k/ Expenses and rewards to be paid to the fund-managing firm by the fund;
l/ Expenses to be paid to the supervisory bank by the fund;
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n/ The contents of and means for announcing information related to the fund;
o/ The funds operation term;
p/ The dissolution of the fund;
q/ The amending and supplementing of the funds charter;
r/ Change of fund-managing firm;
s/ Change of supervisory bank.
2. The amendments and/or supplements to the funds charter must be adopted by the investors congress and approved by the State Securities Commission. Within 15 days after the approval by the State Securities Commission, the fund-managing firm shall have to make public such amendments and/or supplements on mass media provided for in the fund�s charter at least 03 times in a row.
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a/ The names of the fund-managing firm, the supervisory bank and of the securities investment fund;
b/ The rights and obligations of the fund-managing firm and of the supervisory bank;
c/ Expenses and mode of paying fees to the fund-managing firm;
d/ Expenses and mode of paying fees to the supervisory bank;
e/ The dissolution of the fund;
f/ The forms and contents of certificates, the issuance, sale offer, transfer and cancellation of certificates;
g/ Change of fund-managing firm;
h/ Change of supervisory bank;
i/ The duration, termination and amendment of the contract.
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a/ Other funds being managed by the fund-managing firm in question;
b/ Regulations on tax(es) applicable to the fund;
c/ The selling prices and mode of determining the selling prices of certificates;
d/ The volume of certificates to be issued;
e/ The estimated distribution duration;
f/ Ways of certificate purchase registration;
g/ Ways of certificate distribution if the number of certificates to be purchased according to registration exceeds the number of issued certificates;
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i/ The effective duration of the prospectus.
2. The amendment and/or supplement to the prospectus must be approved by the State Securities Commission. In the course of certificate issuance, the fund-managing firm shall have to post up the prospectus at all certificate-selling places.
1. The funds name;
2. The names and head-offices of the fund-managing firm and the supervisory bank;
3. The funds investment objectives;
4. The funds operation term;
5. The number of certificates to be issued;
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7. The certificate-distributing timelimit and locations;
8. Telephone number(s) and fax number(s) for making registrations of certificate purchase.
2. When issuing certificates, the fund-managing firm may use the brief prospectus, which must indicate fully and accurately the principal contents according to the provisions of Article 32 of this Regulation.
3. Where requested by investors, the fund-managing firm shall have to hand over the fund�s charter or the officially approved prospectus to the former.
2. Within 10 days after the end of the first issuing campaign, the fund-managing firm shall have to send a report on the issuance results to the State Securities Commission and register the official establishment of the fund.
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a/ For closed funds: The total value of the investment fund certificates sold in the first issuing campaign achieves at least 5 billion VN dong and the minimum number of certificate owners is 100;
b/ For open funds: The volume of investment fund certificates sold in the first issuing campaign represents at least 15% of the total number of certificates to be issued.
4. The timelimit for the State Securities Commission to approve the registration of the official establishment of the fund shall be 10 days after receipt of the report on issuance results.
5. Where the registration of the funds official establishment is refused, the fund-managing firm shall have to cancel the issuing campaign and return the money to the investors within 30 days after the end of the first issuing campaign. The expenses for the issuance and the money reimbursement shall be covered by the fund-managing firm.
Article 38.- After the fund is registered for official establishment, those certificates which have not yet been issued shall be kept in the fund’s account at the supervisory bank. The resumption of certificate issuance shall have to comply with the following stipulations:
1. For closed funds: They shall only be issued in separate campaigns and a prospectus must be made for each issuing campaign and submitted to the State Securities Commission for approval. The prospectus must be made in accordance with Article 32 of this Regulation;
2. For open funds: They may be issued but the total number of certificates in circulation must not exceed the maximum number provided for in the approved charter of the fund.
3. The selling price of these certificates is stipulated in Appendix 1 to this Regulation (not enclosed herewith).
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2. Before the fund is registered for official establishment, the fund-managing firm shall not be allowed to use the proceeds from certificate issuance for any purpose.
2. The above expenses must be accurately and fully accounted and not exceed the issuance expense stated in the prospectus.
1. The fund-managing firm shall, on behalf of the closed fund, issue closed-fund certificates.
2. The closed-fund certificates may be transferred, listed and transacted at the Stock Exchange or the Securities Trading Centers according to the provisions of law.
3. A closed-fund may be re-registered as an open fund. The re-registration must be adopted by the investors congress and approved by the State Securities Commission.
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1. The fund-managing firm shall, on behalf of the open fund, issue open-fund certificates.
2. After the fund is registered for official establishment, investors may request the fund-managing firm to buy back the certificates at the time prescribed in the funds charter. The back-buying prices of certificates are stipulated in Appendix 1 of this Regulation (not enclosed herewith).
3. The back-buying shall be effected within 15 days after receiving investors request; where the fund has not enough cash to buy back certificates, the above timelimit may be prolonged for 5 more days.
4. Where past the timelimit mentioned in Clause 3 of this Article the fund-managing firm still fails to buy back the certificates, the supervisory bank shall have to suspend the issuing activities and temporarily cease to buy back the certificates, and at the same time convene the investors congress. The convening of investors� congress and the realization of its resolutions shall comply with Clauses 3 and 4 of Article 24 and with Articles 25, 26 and 27 of this Regulation.
a) For closed funds: They shall be determined monthly, serving as basis for certificate transactions;
b) For open funds: They shall be determined daily, serving as basis for the issuance and back-buying of certificates.
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3. The methods of calculating the fund’s net asset value and each certificate�s value are stipulated in Appendix 1 of this Regulation (not enclosed herewith).
2. Before dissolving a fund, the fund-managing firm shall have to convene the investors congress and present a dissolution plan so that the investors may decide.
3. The convening and realization of the resolution(s) of the investors congress shall comply with Clauses 3 and 4 of Article 24 and with Articles 25, 26 and 27 of this Regulation.
4. Before dissolving the fund, the fund-managing from shall have to seek permission from the State Securities Commission, which shall approve the dissolution of the fund only when the fund-dissolving plan accords the investors interests.
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2. The State Securities Commission shall consider and grant fund-management practice licenses to foreign individuals at the proposal of the fund-managing firm.
Article 47.- Applicants for fund management practice licenses must meet the following conditions:
1. Having full legal capacity and civil act capacity;
2. Having at least the degree of bachelor of economics or bachelor of law;
3. Having all professional certificates granted by the State Securities Commission;
4. Having worked at least for 03 years in the field of finance, banking or insurance;
5. Having never been the general director (director) of a bankrupt company, except for cases provided for in Clause 2, Article 50 of the Law on Enterprise Bankruptcy;
6. Having never been practitioners whose licenses had been withdrawn by the State Securities Commission;
7. Not falling in one of the falling cases:
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b/ Having been sentenced for serious offences against the national security, serious crimes against the socialist ownership as well as citizens’ ownership, or serious economic crimes;
c/ Having been sentenced for other offences, and the sentences have not yet been wipped out.
Article 48.- The dossiers of application for a practice license shall comprise:
1. The application for the fund management practice license;
2. Professional certificates granted by the State Securities Commission and diplomas and certificates certifying academic degrees;
3. Curricula vitae with competent bodies certification that the applicants do not fall into the categories prescribed in Clause 7, Article 47 of this Regulation.
Article 49.- The dossier of application for a practice license for a foreigner shall comprise:
1. The application for a practice license for the foreigner;
2. The copy of his/her passport; the notarized copy of the permit for his/her stay in Vietnam;
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4. Diplomas and/or certificates certifying his/her academic degree and professional qualifications.
5. A written certification of his/her legal status by a competent body of the country which he/she bears the citizenship of;
6. The labor contract (if any) already signed with a fund-managing firm.
2. In case of amendment and/or supplement to a dossier of application for the practice license, the dossier-receiving date shall be the date the State Securities Commission receives the amended and/or supplemented text.
Article 52.- The practice license holder must not:
1. Simultaneously work for or invest in two or many fund-managing firms;
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3. Buy, sell, transfer, lease or borrow practice licenses.
1. He/she no longer meets the conditions for being granted the fund management practice license as provided for in Article 47 of this Regulation;
2. He/she breaches the provisions in Articles 42, 69, 70, 71, 72 and/or 73 of Decree No. 48/1998/ND-CP of the Government on securities and securities market, issued on July 11, 1998.
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a/ The final statement of accounts, the report on business result, the report on money circulation (if any) of the fund-managing firm, with certification by the audit;
b/ The list of shareholders of the fund-managing firm and the proportion of share owned by each of them;
c/ The general statement of accounts of various funds managed by the firm;
d/ The names, ages and qualifications of the leading officials of the fund-managing firm;
e/ Important decisions regarding organization and operation in the year.
2. Where a fund-managing firm owns more than 50% of the stock capital of another organization, the formers financial report must include also the financial statement of such organization.
2. The funds annual report shall include the following contents:
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b/ The detailed report on the fund�s assets, calculated at market prices;
c/ The funds profits and division of profits;
d/ The detailed report on the expenses paid in the year by the fund;
e/ The numbers of investment fund certificates issued and bought back in the fiscal year, the number of investment fund certificates being in circulation at the end of the fiscal year;
f/ The value of each investment fund certificate being in circulation at the end of the fiscal year;
g/ Transactions carried out for the fund by the fund-managing firm during the fiscal year;
h/ Names, ages and qualifications of the managerial officials of the fund-managing firm and of the fund;
i/ Important decision on economic or legal matters as well as the investment policies, made by the fund-managing firm during the operation year.
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2. Within 15 days from the end of every quarter, the fund-managing firm shall have to send to the State Securities Commission the funds balance of accounts, business result report and money circulation (if any) report for the previous quarter, together with the written explanations.
3. The reports mentioned in Clauses 1 and 2 of this Article must be certified by the supervisory bank in term of their truthfulness and accuracy.
a/ The firm is investigated by a competent agency;
b/ The firm plans a merger with another company;
c/ The firm suffers from a great material loss;
d/ The firm is complained against;
e/ The firm sees a change in the dominant shareholders;
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g/ The firm appoints or dismisses the fund manager;
h/ The firm witnesses important changes in its business operation, which may affect the management of the fund;
i/ The firm cannot buy back the certificates;
j/ The fund�s value drops by 10% as compared to the value at the time the fund was registered for official establishment;
k/ There are important changes in the business environment and the fund�s investment situation.
2. Right after sending such reports to the State Securities Commission; the fund-managing firm shall have to publish the information prescribed at Points b, e, f, g, h, i, j and k, Clause 1 of this Article at least 03 times on mass media as provided for in the fund’s charter.
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The inspected or supervised fund-managing firms and individual practitioners shall have to supply information at the request of the inspection and supervision bodies.
2. If dispute involving foreign parties cannot be negotiated or settled according to international agreements which the Socialist Republic of Vietnam has signed or acceded to, they shall be resolved according to Vietnamese law.
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- 1 Decision No. 63/2005/QD-BTC dated September 14, 2005, promulgating the accounting regulation of the securities investment fund
- 2 Decision No.73/2004/QD-BTC of September 3, 2004 promulgating the regulation on organization and operation of securities investment funds and fund management companies
- 3 Decree of Government No.48/1998/ND-CP of July 11, 1998 on securities and securities market
- 4 Law No. 30-L/CTN of December 30, 1993, on Bankruptcy.
- 1 Decision No. 71/2005/QD-BTC of October 21, 2005, on amendment of and addition to a number of articles of the regulation on organization and operation of securities investment funds and fund management companies.
- 2 Decision No. 63/2005/QD-BTC dated September 14, 2005, promulgating the accounting regulation of the securities investment fund
- 3 Decision No.73/2004/QD-BTC of September 3, 2004 promulgating the regulation on organization and operation of securities investment funds and fund management companies