| THE MINISTRY OF FINANCE --------- | SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ---------- |
| No. 17/2007/TT-BTC | Hanoi, March 13, 2007 |
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;
Click Download to see full text
