Circular No. 17/2007/TT-BTC dated March 13, 2007, providing guidance on Dossiers of registration of public offering of securities

CIRCULAR

PROVIDING GUIDELINES ON APPLICATION FILES FOR REGISTRATION OF PUBLIC OFFERS OF SECURITIES

In implementation of the Law on Securities dated 29 June 2006 and Decree 14/2007/ND-CP of the Government dated 19 January 2007 implementing the Law on Securities, the Ministry of Finance hereby provides the following guidelines on application files for registration of public offers of securities:

I. GENERAL PROVISIONS

1. This Circular regulates in detail application files for registration of public offers of securities, application files for offers of securities overseas, and some other specific cases.

2. Information in an application file must be accurate and truthful, not cause misunderstanding, and contain all the important items influencing decisions of investors.

3. The issuing organization and any other entity involved in [preparing] the application file for registration of a public offer of securities shall be liable for the accuracy, truthfulness and completeness of such file pursuant to article 17 of the Law on Securities.

4. In the case of an application file for registration of a public offer of securities in Vietnam concurrently with an offer of the securities overseas, there must be, in addition to the data required by these Regulations, a copy of the data registering the offer with the competent overseas body. If the financial statements enclosed with the data registering the offer with the overseas body were not prepared in accordance with Vietnamese accounting standards, then there must be an explanation of the differences between the Vietnamese standards and the standards used.

5. An application file for registration of a public offer of shares or bonds to be sent to the State Securities Commission shall be prepared in one original set and five copy sets, enclosing an electronic file sent to the address nominated by the State Securities Commission. After receiving approval in principle, the issuing organization shall send the six approved sets of the application file to the State Securities Commission prior to the latter issuing a certificate of registration of the public offer of securities.

6. The issuing organization must make an issue announcement in three consecutive editions of a written or electronic newspaper on the standard form in Appendix 1A or 1B issued with this Circular, within a time-limit of seven (7) days from the date of effectiveness of the certificate of registration of the public offer of shares or bonds.

7. The issuing organization or underwriter must report to the State Securities Commission the results of the offer of shares or bonds, enclosing a letter of confirmation from the bank where the escrow account was opened of the amount of the proceeds received from the offer tranche, within a time- limit of ten (10) days from the end of the offer tranche. The report shall be made on the standard form in Appendix 2A or 2B issued with this Circular.

8. The application file stipulated in section IV of this Circular shall be prepared in two sets and sent to the State Securities Commission. In the case of the application file stipulated in clause 3.2 of section IV, documents must be prepared in both English language and Vietnamese language versions, and the English language versions must be consularized. Copies in Vietnamese and translations from English into Vietnamese must be certified by a Vietnamese notary public or by a law firm with the function of translating and legally operating in Vietnam.

9. A fund management company or securities investment company must notify an offer tranche to the State Securities Commission enclosing a draft issue announcement on the standard form in Appendix 3 issued with this Circular, seven (7) days prior to conducting the offer tranche.

10. The State Securities Commission shall certify the offer tranche within three days from the date of receipt of the notification of the offer tranche referred to in clause 9 above. In a case of refusal to certify, the State Securities Commission shall specify its reasons in writing.

11. The fund management company or securities investment company must make the issue announcement in an electronic newspaper and in three consecutive editions of a central newspaper or a local newspaper where the offer tranche is to be conducted, within three days from the date of certification by the State Securities Commission of the offer tranche.

12. The fund management company or securities investment company must report to the State Securities Commission the results of the offer, enclosing a letter of confirmation from the bank where the escrow account was opened of the amount of the proceeds received from the offer, within a time- limit of five days from the end of the offer tranche. The report shall be made on the standard form in Appendix 4 issued with this Circular.

II. APPLICATION FILES FOR REGISTRATION OF PUBLIC OFFERS OF SHARES

1. An application file for registration of a public offer of shares shall comprise:

1.1 Request for registration of the public offer of shares, on the standard form in Appendix 5A issued with this Circular.

1.2 Prospectus on the standard form stipulated by the Ministry of Finance and containing

(a) Summarized information about the issuing organization including the scale of its managerial organization, its business operation, assets and financial status, the board of management or member's council or company owner, the director or general director, the deputy director or deputy general director, and the shareholding structure (if any);

(b) Information about the offer tranche and the shares the subject of the offer, including conditions of the offer, risk elements, proposed plan on profit and dividends for the next year after the issue of the shares, the issue plan and the plan for utilization of the proceeds earned from the offer tranche;

(c) Financial statements of the issuing organization for the last two years, satisfying the following requirements:

- Compliance with the current State regulated accounting regime;

- The financial statements shall comprise the accounting balance sheet, a report on results of production and business activities, a cash flow report and an explanation of the financial statements;

- An issuing organization which is a parent company must lodge consolidated financial statements in accordance with the law on accounting, together with the financial statements of such parent company;

- Annual financial statements must be audited by an approved auditing organization. The opinion of the auditor must be approval of the whole of the financial statements; but if the auditor expresses any reservation then it must not be about an important [item] and must be accompanied by a reasonable explanation of the basis for the reservation;

- In a case where an application file is lodged prior to 1 March in any one year, the annual financial statements of the previous year in an initial application file may be unaudited, but there must also be audited financial statements for the previous two consecutive years;

- Where a valid application file for registration of a public offer of securities is lodged with the State Securities Commission in excess of ninety (90) days after the last day of the accounting period of the most recent financial statements submitted with the application file, the issuing organization must prepare additional financial statements up until the most recent month or quarter;

- If there are abnormal changes after the last day of the accounting period of the most recent financial statements submitted with the application file, the issuing organization must prepare additional financial statements up until the most recent month or quarter;

- If copy financial statements are submitted then they must be notarized or certified by the auditor (in the case of audited financial statements) or by the issuing organization (in the case of unaudited financial statements).

(d) The prospectus must be signed by the chairman of the board of management or of the member's council or by the company chairman, the director or general director, the financial director or the chief accountant of the issuing organization and the legal representative of the underwriter or leading underwriter [if any]. There must be a power of attorney if a signatory signs on behalf of another.

1.3 Charter of the company with contents as stipulated by law.

1.4 Resolution of the general meeting of shareholders approving the issue plan and the plan for utilization of the proceeds earned from the share offer.

1.5 Undertaking to underwrite the issue (if any) on the standard form in Appendix 6A issued with this Circular. If there is a syndicate of underwriters then there must be the undertaking of the leading underwriter together with the contract between the members of the syndicate. The data on the undertaking to underwrite the issue may be submitted after submission of the other data, but it must be submitted prior to the issuance of the certificate of registration of the public offer of shares.

1.6 Decision of the board of management of the company approving the application file. In the case of a public offer of shares by a credit institution, the application file must include a letter of approval from the State Bank of Vietnam.

1.7 If a part of or an entire application file for registration of a public offer of shares has been certified by an affiliated organization or individual, then the issuing organization must forward such certification to the State Securities Commission.

2. An application file for registration of an initial public offer of shares by an enterprise with foreign owned capital which converts to become a shareholding company, shall comprise:

2.1 In the case of an enterprise with foreign owned capital which converts to become a shareholding company in combination with making a public offer of shares:

(a) Request for registration of the public offer of shares, on the standard form in Appendix 5A issued with this Circular;

(b) Prospectus as stipulated in clause 1.2 above of this section II;

(c) Charter of the company with contents as stipulated by law;

(d) Resolution of the board of management of the joint venture enterprise or of the owner of the enterprise with one hundred (100) per cent foreign owned capital passing the issue plan and the plan for utilization of the proceeds earned from the offer tranche, if the offer is aimed at raising capital;

(dd) Decision approving the plan on conversion from an enterprise to a shareholding company, from the State body authorized to decide establishment of enterprises with foreign owned capital;

(e) Undertaking to underwrite the issue (if any) as stipulated in clause 1.5 above of this section II;

(g) If the issuing organization is a credit institution, a letter of approval from the State Bank of Vietnam;

(h) If a part of or the entire application file has been certified by an affiliated organization or individual, then such certification;

(i) Data on valuation of the enterprise;

(k) Contract with the securities consultancy company which advised on formulation of the application file;

(l) Decision approving the application file, made by the board of management of the joint venture enterprise or by the owner of the enterprise with one hundred (100) per cent foreign owned capital.

2.2 In the case of an enterprise with foreign owned capital which has already converted to become a shareholding company:

(a) The data stipulated in sub-clauses (a), (b), (c), (dd), (e), (g), (h), (i) and (k) of clause 2.1 above of this section II;

(b) Resolution of the board of management passing the issue plan and the plan for utilization of the proceeds earned from the offer tranche, if the offer is aimed at raising capital;

(c) Decision approving the application file, made by the board of management.

3. An application file for registration of an initial public offer of shares by a newly established enterprise in the infrastructure sector or in the high-tech sector shall comprise:

(a) Request for registration of the public offer of shares, on the standard form in Appendix 5A issued with this Circular;

(b) Data proving that the enterprise invests in construction of infrastructure works belonging to the socio- economic development plan of a ministry or industry or of a province or city under central authority; or data proving that the enterprise operates in a high-tech sector on the list of projects for which the law encourages investment;

(c) Charter of the company with contents as stipulated by law;

(d) Prospectus as stipulated in clause 1.2 above of this section II, substituting the investment project as approved by the competent body instead of financial statements;

(dd) Undertaking from the board of management or founding shareholders to be jointly liable for the issue plan and plan for utilization of the proceeds earned from the public share offer tranche;

(e) Undertaking to underwrite the issue as stipulated in clause 1.5 above of this section II;

(g) Letter appointing a bank to supervise utilization of the proceeds earned from the offer tranche.

4. An application file for registration of an additional public offer of shares, of a public offer of share purchase rights or an additional public offer of shares accompanied by share purchase rights by a public company shall comprise:

(a) Request for registration of the public offer of shares, on the standard form in Appendix 5A issued with this Circular;

(b) Resolution of the general meeting of shareholders approving the issue plan and the plan for utilization of the proceeds earned from the share offer;

(c) Undertaking to underwrite the issue (if any) as stipulated in clause 1.5 above of this section II;

(d) Data supplementing the prospectus. If a period of twelve (12) months has expired since the initial issuing tranche, there must be a new prospectus;

(dd) If the issuing organization is a credit institution, a letter of approval from the State Bank of Vietnam.

III. APPLICATION FILES FOR REGISTRATION OF PUBLIC OFFERS OF BONDS

1. An application file for registration of a public offer of bonds shall comprise:

1.1 Request for registration of the public offer of bonds, on the standard form in Appendix 5B issued with this Circular.

1.2 Prospectus on the standard form stipulated by the Ministry of Finance and containing the items stipulated in clause 1.2 of section II.

1.3 Charter of the company with contents as stipulated by law.

1.4 Resolution of the board of management or member's council or company owner, passing the issue plan and the plan for utilization of the proceeds earned from the bond offer.

1.5 Undertaking to underwrite the issue (if any) on the standard form in Appendix 6B issued with this Circular. If there is a syndicate of underwriters then there must be the undertaking of the leading underwriter together with the contract between the members of the syndicate. The data on the undertaking to underwrite the issue may be submitted after submission of the other data, but it must be submitted prior to the issuance of the certificate of registration of the offer.

1.6 Decision of the board of management or member's council or company owner approving the application file. In the case of a public offer of bonds by a credit institution, the application file must include a letter of approval from the State Bank of Vietnam.

1.7 If a part of or the entire application file for registration of a public offer of bonds has been certified by an affiliated organization or individual, then the issuing organization must forward such certification to the State Securities Commission.

2. An application file for registration of a public offer of guaranteed enterprise bonds shall comprise:

2.1 Request for registration of the public offer of bonds, on the standard form in Appendix 5B issued with this Circular.

2.2 Prospectus containing the items stipulated in clause 1.2 of section II.

2.3 Charter of the company with contents as stipulated by law.

2.4 Resolution of the board of management or member's council or company owner, passing the issue plan and the plan for utilization of the proceeds earned from the bond offer.

If the issuing organization is a State owned enterprise, the issue plan and the plan for utilization of the proceeds earned from the bond offer and repayment of capital debt must be approved by the State owner's representative.

2.5 Undertaking from the issuing organization to discharge obligations to investors regarding conditions of the issue and conditions for payment, ensuring the lawful rights and interests of investors and ensuring other conditions.

2.6 Undertaking to underwrite the issue (if any) as stipulated in clause 1.5 above of this section III;

2.7 If a part of or the entire application file for registration of the public offer of bonds has been certified by an affiliated organization or individual, then the issuing organization must forward such certification to the State Securities Commission.

2.8 If the issuing organization is a credit institution, a letter of approval from the State Bank of Vietnam.

2.9 Document guaranteeing payment, accompanied by audited financial statements for the most recent year of the underwriter guaranteeing payment.

2.10 Contract with the guaranteed obligations between the bond issuing organization and the guarantor if the security is third party assets, enclosing a list of such assets and valid proof of lawful ownership of the assets by the issuing organization or guarantor and insurance contracts (if any); minutes of valuation of the collateral assets from an authorized assessment entity; and certificate of registration of the collateral assets with the competent body.

2.11 Contract between the bond issuing organization and the representative of bondholders, on the standard form in Appendix 7 issued with this Circular.

2.12 Decision of the board of management or member's council or company owner approving the application file.

3. An application file for registration by a shareholding company of a public offer of convertible bonds, of bonds with securities rights or securities rights with preference shares shall comprise:

3.1 The data stipulated in clauses 2,1. 2.2, 2.3, 2.6, 2.7 and 2.8 above of this section III.

3.2 Decision approving the application file, made by the board of management.

3.3 Resolution of the general meeting of shareholders passing the issue plan and the plan for utilization of the proceeds earned from the offer tranche.

3.4 Undertaking to discharge obligations to investors the same as stipulated in clause 2.5 of this section III, containing the following additional items:

- Conditions and date for conversion of convertible bonds into shares;

- Ratio of conversion and method for calculating price of conversion;

- Other conditions (if any).

3.5 Plan passed by the general meeting of shareholders on issuing the requisite number of shares for the conversion.

4. An application file for registration of public offers of shares [and/or] bonds in a number of tranches must include the following items in the prospectus:

4.1 Project or plan showing the need to raise capital via a number of tranches.

4.2 Plan for the overall issue specifying the proposed purchasers, volume [of shares or bonds] and proposed duration of each issuing tranche.

If a period of six (6) or more months has expired since the previous issuing tranche, there must be supplementary data from the issuing organization on the company status and the status of use of proceeds from the previous tranches.

IV. APPLICATION FILES FOR REGISTRATION OF PUBLIC OFFERS OF PUBLIC FUND CERTIFICATES OR SHARES IN A SECURITIES Investment Company

1. An application file for registration of an offer of fund certificates shall comprise:

(a) Request for registration of the public offer of fund certificates, on the standard form in Appendix 8 issued with this Circular;

(b) Issue plan and the plan for investment of the proceeds earned from the offer tranche;

(c) Charter of the company on the standard form stipulated by the Ministry of Finance;

(d) Prospectus on the standard form stipulated by the Ministry of Finance;

(dd) Contract between the fund management company and the custodian bank for supervision of use of proceeds earned from the offer;

(e) Undertaking to underwrite the issue (if any).

2. An application file for registration of a further offer of closed fund certificates shall comprise:

(a) Request for registration of the public offer of fund certificates, on the standard form in Appendix 8 issued with this Circular;

(b) Resolution of the general meeting of investors approving the additional issue plan and the plan for investment of the proceeds earned from the additional tranche;

(c) Prospectus on the standard form stipulated by the Ministry of Finance;

(d) Confirmation from the custodian bank of compliance with current law by the fund;

(dd) The data stipulated in clause 1(b) above of this section IV.

3.1 If the capital contributing founding shareholders do not include a foreign legal entity:

(a) Request for registration of the public offer of shares from the fund management company or founding shareholders, on the standard form in Appendix 5A issued with this Circular;

(b) Draft charter of the securities investment company on the standard form stipulated by the Ministry of Finance;

(c) Prospectus on the standard form stipulated by the Ministry of Finance;

(d) Undertaking to underwrite the issue (if any);

(dd) Draft supervision contract;

(e) List of founding shareholders with copy identity cards or passports and legal files for individuals; or business registration certificates for legal entities;

(g) Undertaking of founding shareholders to register to purchase at least twenty (20) per cent of the shares registered for the public offer and to hold such shares for a period of three years from the date of issuance of the licence for establishment and operation;

(h) Draft contract on management of investments (if a fund management company will manage the invested capital);

(i) Other data on the founding shareholders, members of the board of management, director or deputy director, general director or deputy general director of the securities investment company as stipulated by the Ministry of Finance in its guidelines on organization and operation of fund management companies, securities investment funds and securities investment companies;

(k) Personal files of the people proposed by the securities investment company to be general director or deputy general director (or director or deputy director) and of fund management personnel, together with their fund management practising certificates or applications for same (in a case of self- management of invested capital);

(l) Explanatory statement on technical facilities for the securities operation (if the company itself will manage its own invested capital).

3.2 If the capital contributing founding shareholders include foreign legal entities:

The application file must contain this additional material: valid copy of the charter or equivalent document, and licence for establishment and operation or business registration certificate of the foreign legal entity issued by the country of origin or data proving such legal entity is permitted to conduct securities business in the country of origin; and decision on the capital contribution to establish the securities investment company in Vietnam, issued by the authorized body.

4. An application file for registration of a public offer of shares in order to increase the capital of the securities investment company shall comprise:

(a) Request for registration of the public offer of shares in order to increase the capital of the company, on the standard form in Appendix 5A issued with this Circular;

(b) Prospectus, including additional share issue plan and the plan for use of the capital raised, on the standard form stipulated by the Ministry of Finance;

(c) Resolution of the general meeting of investors approving the increase of capital and the additional share issue plan;

(d) Underwriting contract (if any);

(dd) Confirmation from the custodian bank of compliance with current law by the securities investment company and fund management company (if any).

V. IMPLEMENTING PROVISIONS

1. This Circular shall be of full force and effect fifteen (15) days after the date of its publication in the Official Gazette.

2. Any difficulties during implementation should be reported to the Ministry of Finance for resolution.