Chapter II
ISSUANCE OF BONDS IN DOMESTIC MARKETS
Article 10. Bond issuance requirements
1. Non-convertible bonds or bonds without warrants:
a) In order to be eligible for issuing bonds, joint-stock companies or limited liability companies must be established and operated under Vietnamese legislation;
b) Have operated for the minimum period of 01 year after first issuance of the Business Registration Certificate or Business Registration Certificate or License of equivalent validity in accordance with law. As regards a reorganized or transformed enterprise, its operational duration shall be calculated as the operational time of the split enterprise (in case it is subject to the corporate split-up), the operational time of the separated enterprise (in case it is subject to the corporate separation), the longest operational time among amalgamating enterprises (in case it is subject to the corporate amalgamation), the operational time of the acquiring enterprise (in case it is subject to the corporate acquisition), or the operational time of the enterprise before and after transformation (in case it is subject to the corporate transformation);
c) Have the financial statement of the year preceding the year of issue of corporate bonds which is audited as conforming to requirements specified in clause 7 of Article 4 hereof;
d) Ensure compliance with the limit on the number of investors upon issuance and transaction of bonds as provided in clause 2 of Article 4 and clause 8 of Article 6 hereof;
dd) Have the plan for issuance of bonds approved and accepted by competent authorities under Article 14 hereof;
e) Make full payments of both principal and interest for a period of 03 consecutive years prior to the issuance of bonds (if any);
g) Conform to financial safety ratios and prudential ratios in accordance with specialized laws.
2. Issuance of convertible bonds or warrant-linked bonds:
a) Issuing enterprises must be joint-stock companies;
b) Meet issuance requirements referred to in point b, c, d, dd, e and g of clause of this Article;
c) Meet the regulation of foreign investors' ownership ratio in accordance with the law in case of converting bonds into shares or exercising the right to purchase of warrants;
d) The issuances of convertible bonds must be at least six months apart;
dd) Convertible bonds and warrants attached to bonds shall not be transferable for at least 01 year from the date of completion of the issuance, unless they are transferred to or between professional securities investors or they are otherwise prescribed by the decision of the Court or they are inherited according to the provisions of law.
3. Issuing enterprises must be public companies that, in addition to meeting the conditions for issuance under the provisions of Clauses 1 and 2 of this Article, must also satisfy the conditions for offering private securities of public companies according to the provisions of Article. 10a of the Law amending and supplementing a number of articles of the Securities Law.
Article 11. Requirements for issuance of bonds
1. In order to be eligible for multiple issuances of bonds, issuing enterprises must meet the following requirements:
a) Meet issuance requirements referred to in Article 10 herein;
b) Have demands for mobilizing capital multiple times in conformance to the purposes of issuing bonds approved by competent authorities;
c) Develop a plan to issue bonds, clearly stating the number of issuances; expected volume, time of issuance and plan of capital use for each issuance. Ensure that duration of each issuance is restricted to 90 days;
d) Carry out the disclosure of information on bond issuance in accordance with Clause 2, Article 22 of this Decree.
2. Enterprises issuing bonds that meet the requirements specified in Clause 1 of this Article may issue bonds multiple time, but not exceeding 12 months from the start date of the first issuance.
Article 12. Bond issuing process
1. Issuing enterprises prepare bond issuance dossiers according to the provisions of Article 13 of this Decree.
2. Issuing enterprises disclose information before the issuance according to the provisions of Article 22 of this Decree.
3. Issuing enterprises conduct bond issuances according to the provisions of Article 15 of this Decree.
4. Issuing enterprises disclose information about results of issuances and report on issuance results according to the provisions of Article 23 of this Decree.
5. Issuing enterprises apply for depository registration of bonds according to the provisions of Article 16 of this Decree.
6. Issuing enterprises pay bond principal and interest according to the provisions of Article 17 of this Decree.
7. Issuing enterprises shall disclose information and make periodical reports made as from the date of completion of the bond issuance until the maturity of bonds according to the provisions of Article 24 of this Decree.
Article 13. Bond issuing dossiers
1. These dossiers shall be prepared by issuing enterprises, including:
a) Bond issuance plan is prescribed in Clause 1, Article 14 of this Decree;
b) Information sheet about bond issuance according to Appendix I hereto;
c) Agreements between issuing enterprises and organizations providing services related to bond issuances (if any);
d) Financial statement that is made in the year preceding the issuance year and audited;
dd) Credit ratings released by credit rating organizations with respect to issuing enterprises and bond type 9if any).
2. In addition to those referred to in clause 1 of this Article, dossiers submitted to apply for multiple issuances of bonds must include:
a) Projects or plans for use of borrowed funds in multiple stages;
b) Latest updates on financial conditions of issuing enterprises, use of funds derived from the previous bond issuance if the two issuances are at least 06 months apart.
3. The financial statement of the year preceding the year of issue of corporate bonds, which is prescribed in point d of clause 1 of this Article, must be audited by auditing bodies meeting requirements specified in clause 7 of Article 4 hereof; The audited financial statement must be the unqualified or qualified audit report. In case qualified audit opinions are given, the enterprise must give explanations about qualified elements and their effects on the ability to pay bond principals and interest of enterprises.
a) In case where an enterprise issues bonds within 90 days from the end of the fiscal year without the audited financial statement of the year preceding the issuing year, or the consolidated financial statement which is audited in the year preceding the issuing year, the enterprise must use the semi-annual financial statement or the 9-month financial statement of the preceding fiscal year audited by the State Auditor or an auditing company meeting requirements according to the provisions of Clause 7, Article 4 of this Decree. No later than 20 days of receipt of the results of auditing of the annual financial statements, the issuing enterprise must disclose information to bondholders;
b) In cases where an issuing enterprise is a parent company, its audited financial statement must include the audited consolidated financial statement of the year preceding the issuing year and the audited financial statement of the parent company in the year preceding the issuing year.
Article 14. Plans for issuance of bonds and authority to approve issuance plans:
1. Bond issuing enterprises shall formulate issuance plans for submission to competent authorities to seek their approval or consent according to the provisions of Clause 2 of this Article and to use them as a basis for information disclosure. The plan for issuance of bonds shall contain the following main information:
a) Information about the issuing enterprise (e.g. business name, type of business, office, business registration certificate or business registration certificate or license having equivalent value as prescribed by law);
b) Purposes of issuance of bonds;
c) Documents and legal documents proving that enterprises meet each conditions for issuing bonds as stipulated in Article 10 and Article 11 of this Decree;
d) Terms and conditions of bonds to be issued; venue of issuance; volume of bonds in each issuance and proposed time of each issuance;
dd) Terms and conditions regarding conversion of bonds into shares in case of issuance of convertible bonds;
e) Terms and conditions regarding the exercise of stock call options in case of issuing warrant-linked bonds;
g) Terms and conditions on the redemption of premature bonds and bond swaps (if any);
h) Certain financial indices of the issuing enterprise in 03 consecutive years proceeding the issuance year (if any) and any change made after issuance, including:
- Equity;
- Ratio of liabilities to equity;
- After-tax profit;
- Return on equity (ROE);
i) Current conditions of payment of both principal and interest for a period of 03 consecutive years prior to the issuance of bonds (if any);
k) Audit opinions on a financial statement;
l) Bond issuing methods;
m) Modes of payment of bond principal and interest;
n) Plan to use funds generated from issuance of bonds
o) Fund allocation plan and mode of payment of bond principal and interest;
p) Commitments to disclosing information of the issuing enterprise;
q) Other commitments to bondholders (if any);
r) Terms and conditions regarding registration and depositing;
s) Terms and conditions regarding bond transactions under the provisions of clause 8 of Article 6 herein
t) Rights and responsibilities of bond purchasers;
u) Rights and responsibilities of the issuing enterprise;
v) Responsibilities and obligations of organizations and individuals providing services related to bond issuance.
2. Authority to approve and accept the bond issuance plan:
a) For joint-stock companies, the entity having competence in approving the bond issuance plan shall be prescribed in the issuing enterprise’s charter. In case f being otherwise prescribed in the issuing enterprise’s charter, the Board of Directors shall have the right to approve the bond issuance plan but must report to the General Meeting of Shareholders at the latest meeting as stipulated in Clause 4 Article 127 of the Law on Enterprises. Particularly for the plan of issuing convertible bonds, the plan of issuing warrant-linked bonds must be approved by the General Meeting of Shareholders;
b) For public companies issuing convertible bonds or bonds with warrants, after the bond issuance plan is approved by a competent authority under the provisions of Point a of this Clause, the issuing enterprise must register with the State Securities Commission and can issue bonds only after receipt of written opinions of the State Securities Commission;
c) For limited liability companies, the authorities competent to approve bond issuance plans may be the Members' Council or the Chairman of the issuing enterprise according to the issuing enterprise’s charter;
d) As for State enterprises, in addition to authority to grant approval as prescribed in point c of this clause, they must comply with the provisions on capital mobilization limits and authority to decide on mobilization of capital of state enterprises according to the provisions of the Law on management and use of state capital invested in enterprises and other documents providing guidance, amendments and supplements (if any).
Article 15. Bond issuing methods
1. Corporate bonds shall be issued according to the following methods:
a) Bidding on issuance of bonds;
b) Guarantee for issuance of bonds;
c) Issuance of bonds via brokerage agencies;
d) Direct sale of bonds to investors.
2. Issuing enterprises shall be entitled to decide on the issuing method and inform it to bond purchasers.
3. Organizations providing consultancy on bond issuance dossiers must be securities companies, credit institutions and other financial institutions permitted to provide consultancy services for bond issuance dossiers according to law provisions. When providing services, the issuing consultancy organization shall be responsible for reviewing the compliance with regulations on issuance conditions and bond issuance dossiers specified in Articles 10, 11 and 13 of this Decree.
4. Organization providing services such as bidding, guaranteeing and acting as an agency of corporate bond issuance shall include securities companies, credit institutions and financial institutions allowed to provide bidding, guarantee and issuing agency services according to regulations law. When providing services, consulting organizations, guarantee and issuing agents must comply with the limits of the number of investors as stipulated in Clause 2, Article 4 and Clause 8, Article 6 of this Decree.
Article 16. Bond registration and depositing
1. Within 10 working days after the end of the issuance, corporate bonds must be registered and deposited at an authorized depository organization to manage the number of investors as stipulated in Clause 8, Article 6 of the Decree. Each corporate bond can only be registered at an authorized depository organization.
2. The depository shall only certify bond ownership if a bond transaction satisfies the provisions of Clause 8 of Article 6 of the Decree.
3. The depository organization shall be responsible for providing information on bond registration and depository to the Stock Exchange in accordance with clause 2 of Article 30 of this Decree.
Article 17. Payment of bond principal and interest
1. The issuing enterprise must set aside funds to pay principal and interest from the legal capital of the enterprise and pay in full and on time to investors according to the bond issuance plan approved by the competent authority.
2. For bonds secured by property put up as collateral, in case the issuing enterprise does not balance the source of payment of bond principal and interest, the collateral shall be disposed of to fulfill the secured obligation of the bonds according to the provisions of the law on collateral.
3. For guaranteed bonds, in case the issuing enterprise fails to balance the sources of funds for repayment of bond principal and interest, the payment guarantee organization shall have to perform the payment guarantee obligation to the issuing enterprise under the guarantee agreement between the guarantor and the issuing enterprise.
Tìm kiếm
Nghị định 163/2018/NĐ-CP (Bản Word)
Nghị định 163/2018/NĐ-CP (Bản Pdf)