Nghị định 81/2020/NĐ-CP sửa đổi Nghị định 163/2018/NĐ-CP quy định về phát hành trái phiếu doanh nghiệp

DECREE

AMENDMENTS TO THE GOVERNMENT’S DECREE NO. 163/2018/ND-CP DATED DECEMBER 04, 2018 ON ISSUANCE OF CORPORATE BONDS

Pursuant to the Law on Organization of Government dated June 19, 2015;

 Pursuant to the Law on Enterprises dated November 26, 2014;

Pursuant to the Law on Securities dated June 29, 2006;

Pursuant to the Law on Amendments to the Law on Securities dated November 24, 2010;

 Pursuant to the Law on Credits Institutions dated June 16, 2010;

 Pursuant to the Law on Amendments to the Law on Credit Institutions dated November 20, 2017;

At the request of the Minister of Finance;

The Government promulgates a Decree providing amendments to the Government’s Decree No. 163/2018/ND-CP dated December 04, 2018 on issuance of corporate bonds (hereinafter referred to as “Decree No. 163/2018/ND-CP”).

Article 1. Amendments to Decree No. 163/2018/ND-CP

1. Clause 4 is added to Article 3 as follows:

“4. Any violations committed during the private placement of bonds by relevant organizations and individuals shall be handled in accordance with regulations on penalties for administrative violations in securities and securities market sector, and relevant laws.”

2. Clause 8 Article 6 is amended as follows:

''8. Bond transactions:  Corporate bonds issued in the domestic market shall be subject to a restriction that limits the number of investors involving in bond transactions to less than 100, exclusive of professional securities investors, within one year from the end of a bond issue, except bond transactions conducted according to a Court's decision or in inheritance cases as prescribed by law. After the aforesaid period, corporate bonds shall no longer be subject to the restriction on the number of investors involving in bond transactions, unless otherwise decided by the issuer. Transactions involving corporate bonds issued in an international market shall comply with regulations on bond transactions adopted in that market.”

3. Clause 1 Article 10 is amended as follows:

''1. Non-convertible bonds or bonds without warrants:    

a) The issuer must be a joint-stock company or limited liability company that has been duly established and is operating in accordance with the law of Vietnam.

b) It has been operating for a period of at least 01 year from the date of initial issuance of enterprise registration certificate or business registration certificate or another license of equivalent validity as regulated by law.  With regard to a reorganized or converted enterprise, its operating period shall be the operating period of the transferor enterprise (in case of full or partial division of enterprise), or the longest period among operating periods of the consolidating enterprises (in case of consolidation of enterprises), or the operating period of the acquirer enterprise (in case of acquisition of enterprises), or total operating period of the enterprise before and after its conversion (in case of conversion of form of enterprise).

c) Its financial statements of the year preceding the year of issuance have been duly audited by an accredited audit organization as prescribed in Clause 7 Article 4 of this Decree.

d) It has signed a consulting contract with a consultancy organization providing consultancy on bond issuance dossiers as prescribed in Clause 3 Article 15 hereof, unless the issuer is licensed to provide consultancy on bond issuance dossiers as prescribed by law.

dd) It must comply with the limitations on number of investors upon issuance and transaction of bonds as prescribed in Clause 2 Article 4 and Clause 8 Article 6 of this Decree.

e) It must have a plan for bond issuance approved and accepted by a competent authority as prescribed in Article 14 of this Decree.

g) It has fully paid principal and interest amounts of any bonds issued in the last 03 consecutive years preceding the bond issue.

h) It has maintained prudential ratios and operation safety ratios in accordance with regulations of specialized laws.

i) Total outstanding debt on corporate bonds issued through the private placement at the time of issuance (including the planned amount of bonds to be issued) does not exceed 05 times the owner's equity stated in the financial statements of the latest quarter preceding the time of issuance approved by a competent authority.

k) Each bond issue must be completed within 90 days from the date of publishing of information before the bond issue; the interval between two issues must be at least 06 months; bonds issued in an issue must have the same terms and conditions.

l) Credit institutions issuing bonds are not required to satisfy the requirements laid down in Point i and Point k of this Clause.”

4. Point b Clause 2 Article 10 is amended as follows:

“b) Meet the bond issuance requirements laid down in Point b, Point c, Point d, Point dd, Point e, Point g, Point h, Point i, Point k, Point l Clause 1 of this Article;”

5. Clause 1 and Clause 3 Article 13 are amended as follows:

“1. An enterprise’s bond issuance dossier includes:

a) The bond issuance plan prescribed in Clause 1 Article 14 of this Decree;

b) The information sheet about bond issuance as prescribed in Appendix 1 enclosed herewith;

c) The agreements signed between the issuer and providers of services relating to the bond issue;

d) The audited financial statements of the year preceding the year of issuance;

dd) Rating results given by credit rating agencies with respect to the issuer and type of bonds issued (if any);

e) Bond purchase agreement indicating the investor’s commitment to have fully accessed to information published before the bond issue and clearly understood risks incurred from bond purchase.”

“3. The financial statements of the year preceding the year of issuance included in the bond issuance dossier prescribed in Point d Clause 1 of this Article must have been duly audited by an accredited audit organization as prescribed in Clause 7 Article 4 of this Decree.  The auditor’s opinion on the financial statement must be the unqualified opinion. If the auditor gives qualified opinions, such qualified opinions must not affect the bond issuance conditions; the issuer must provide justifications certified by the audit organization.

a) If the bond issue is performed within 90 days from the end of the fiscal year when the audited financial statements of the year preceding the year of issuance or the audited consolidated financial statements of the year preceding the year of issuance is not available, the issuer may use half-year financial statements or financial statements for 09 months of the previous fiscal year reviewed or audited by the State Audit or an accredited audit organization in accordance with the provisions in Clause 7 Article 4 of this Decree.  Within 20 days after the report on audit of annual financial statements is made, the issuer shall make information available to bondholders.

b) If the issuer is a parent company, the audited financial statements consist of the audited consolidated financial statements of the year preceding the year of issuance and the audited financial statements of the parent company of the year preceding the year of issuance.”

6. Point b Clause 1 Article 14 is amended as follows:

“b) Purposes of bond issuance, including information about the investment program or project; business operations requiring funds; debts (name, value and term of debt) restructured by funds raised from the bond issue. The credit institution's purposes of bond issuance are to increase its Tier-2 capital and/or raise funds for granting loans, making investments or serving other purposes.

7. Clause 3 Article 15 is amended as follows:

“3. Organizations providing consultancy on bond issuance dossiers must be securities companies, credit institutions and other financial institutions licensed to provide consultancy on bond issuance dossiers as prescribed by law. When rendering consulting services, the consulting organization shall review the fulfillment of bond issuance requirements and bond issuance dossier of the issuer as prescribed in Article 10, Article 11 and Article 13 of this Decree and the Law on securities."

8. Clause 5 is added to Article 21 as follows:

'' 5. The Ministry of Finance shall provide specific guidance on publishing of information by bond issuers.”

9. Clause 1 and Clause 2 Article 22 are amended as follows:

“1. At least 03 working days before the planned date of organizing the bond issue, the issuer shall publish information before the bond issue for the investors registering for bond purchase and send the published information to the Stock Exchange.

a) The information published before the bond issue is made according to the form in Appendix 1 enclosed herewith;

b) With regard to the issuance of green bonds, in addition to the information to be published prescribed in Point a of this Clause, the issuer shall publish information about management and disbursement of funds raised from the issuance of green bonds as prescribed in Clause 4 Article 5 of this Decree;

c) The issuer shall send the information published before the bond issue to investors registering for bond purchase and the Stock Exchange in the form of paper or electronic documents.

2. For corporate bonds issued in multiple tranches:

a) For the first tranche of bond issue, the publishing of information before the tranche shall comply with the provisions in Clause 1 of this Article.

b) For the following tranches, at least 03 working days before the tranche, the issuer shall provide additional documents as prescribed in Clause 2 Article 13 hereof for investors registering for bond purchase and also the Stock Exchange.”

10. Point b Clause 2 Article 24 is amended as follows:

"b) For the issuance of green bonds, apart from the provisions in Point a of this Clause, the report on use of funds raised from the bond issue, which bears opinions given by the audit organization, and the environmental impact assessment report shall be provided.

11. Clause 1 Article 29 is amended as follows:

“1. According to the assignment by the Ministry of Finance, the Stock Exchange shall consolidate information on corporate bonds, build and operate the corporate bond information webpage for publishing information in accordance with the provisions in Article 21 through 28 of this Decree and guidelines given by the Ministry of Finance.”

12. Article 30 is amended as follows:

“Article 30. Reports on issuance of corporate bonds made by Stock Exchange, depository and counseling organizations

1. The Stock Exchange shall provide monthly, quarterly and annual reports on issuance and trading of corporate bonds, including those issued in the domestic market and international markets, according to guidelines given by the Ministry of Finance. A report submitted by the Stock Exchange includes the following contents:

a) The number of issuers sorted by form of enterprise, including publicly-traded company, non-publicly traded joint-stock company and limited liability company, the number of bond issues (including the issuance of convertible bonds, guaranteed bonds, warrant-linked bonds, and green bonds);

b) Main conditions and terms of bonds to be issued and issuance results;

c) Average interest rate on bonds of each term;

d) Market and location of bond issuance;

dd) Information on the registration, depositing and trading of corporate bonds, including:

- The number of enterprises carrying out registration and depositing of bonds, and the number of bonds registered and deposited during the period; the number of bonds traded during the period.

- The payment of bond principals and interests;

- The number of bondholders of each bond code.

2. The depository shall provide information for the Stock Exchange within 01 working day upon completion of a bond transaction. The depository shall provide monthly, quarterly and annual information on the registration and depositing of bonds for the Stock Exchange that shall then consolidate received information and report it to the Ministry of Finance according to the provisions in Clause 1 of this Article.

3. Counseling organizations shall submit reports on consultancy on issuance of corporate bonds to the Ministry of Finance for every 06 months and on an annual basis.

4. The Ministry of Finance shall provide guidelines on reporting by the Stock Exchange, depository and counseling organizations according to the provisions in Clauses 1, 2 and 3 of this Article."

13. Clause 1 and Clause 2 Article 36 are amended as follows:

1. Provide counseling, bidding, brokerage and guarantee services for issuers under the signed service contracts and in accordance with regulations laid down herein and relevant laws.

2. Review the compliance with regulations on limits on the number of investors as prescribed in Clause 2 Article 4 and Clause 8 Article 6 hereof, issuance conditions and dossiers prescribed in Article 10, Article 11 and Article 13 hereof.”

14. Clause 2 Article 37 is amended as follows:

“2. Provide periodic information on depositing and trading of bonds, and ownership of bonds by investors for the Stock Exchange according to the provisions in Article 30 hereof."

Article 2. Implementation

1. This Decree comes into force from September 01, 2020.

2. For corporate bonds issued before this Decree comes into force, their terms and conditions as stated in the bond issuance plan provided for investors shall remain valid, and depositing, periodic reporting and information publishing, and issuers' responsibility shall comply with regulations laid down herein and guidelines given by the Ministry of Finance.

3. Ministers, heads of ministerial agencies, heads of Governmental agencies, Chairpersons of People’s Committees of provinces and central-affiliated cities, Boards of Directors, Board of Members, General Directors or Directors of enterprises that issue bonds shall implement this Decree./.