Chapter IV
FOREIGN OWNERSHIP ON THE SECURITIES MARKET
Article 11. Foreign ownership on Vietnam's securities market
1. The maximum rate of foreign ownership of public companies; state-owned enterprises carrying out the equitization in the form of a public securities offering; the rate of foreign investors’ ownership of bonds, fund certificates for securities investment, stocks of securities investment companies, and non-voting stocks of public companies, derivative securities, depository receipts shall be determined under the provisions of Clause 2 Article 1 of the Government's Decree No. 60/2015/ND-CP dated June 26, 2015 on amendments or supplements to several articles of the Government's Decree No. 58/2012/ND-CP dated July 20, 2012 on providing specific provisions and guidance on the implementation of a number of articles of the Law on Securities and the Law on Amendments and Supplements to several articles of the Law on Securities (hereinafter referred to as the Decree No. 60/2015/ND-CP).
2. Public companies shall be responsible for determining investment and business industries and sectors as well as the maximum rate of foreign ownership of companies. The list of conditional investment and business industries or sectors; the rate of foreign ownership in each investment and business industry, sector (if any) shall conform to International Agreements, provisions laid down in investment or corporate laws and other relevant legal regulations.
3. Public companies which are not subject to restrictions on the rate of foreign ownership as stipulated in Clause 2 Article 1 of the Decree No. 60/2015/ND-CP, when wishing to limit the actual foreign ownership rate, shall clearly stipulate the maximum rate of foreign ownership of the company’s charter.
4. If public companies impose the rate of foreign ownership exceeding the permitted rate stipulated in Clause 2 Article 1 of the Decree No. 60/2015/ND-CP, they and their related organizations or individuals must ensure that they do not allow an increase in the foreign ownership rate in companies.
5. The foreign ownership rate in securities trading organizations is unlimited according to the following regulations:
a) Foreign organizations meeting requirements stipulated in Clause 21 and Clause 24 Article 1 of the Decree No. 60/2015/ND-CP shall be allowed to hold more than 51% of the charter capital of securities trading organizations;
b) Each foreign investor as an individual or other organization shall only be allowed to hold less than 51% of the charter capital of securities trading organizations.
6. The maximum rate of foreign ownership of securities trading organizations must be stipulated in the charter of these securities trading organizations, except for the situation in which they are organized in the form of single member limited companies.
Article 12. Obligations of public companies to make reports and disclose information on foreign ownership
1. Public companies making changes to the rate of foreign ownership shall be obliged to make reports and disclose information. Reporting on the foreign ownership rate is required under the following circumstances:
a) Public companies which are not subject to restrictions on the rate of foreign ownership as stipulated in Clause 2 Article 1 of the Decree No. 60/2015/ND-CP make adjustments to their foreign ownership rate;
b) When obtaining the permission for registration as public companies or offering or issuing stocks, public companies make changes to their foreign ownership rate;
c) Companies are restructured by going through the process of splitting, division, merging or acquisition which may lead to changes made to the foreign ownership rate;
d) Changes in investment and business industries or sectors result in changes to the foreign ownership rate as stipulated in Clause 2 Article 1 of the Decree No. 60/2015/ND-CP;
dd) International Agreements or relevant laws have been changed in terms of regulations on the foreign ownership rate in investment and business industries or sectors in which public companies are operating.
2. Reporting processes, procedures and documentation for the foreign ownership rate as stipulated in Point a, d, dd Clause 1 of this Article shall conform to regulations laid down in Article 13 hereof. Reporting and information disclosure as stipulated in Point b, c Clause 1 of this Article shall be carried out in the same manner as reporting and information disclosure required to be carried out during the process of applying for registration as public companies, registration of stock offering, issue or company restructuring in accordance with legal regulations.
Article 13. Processes, procedures and documentation for reporting the foreign ownership rate in public companies
1. Documentation submitted to make reports on the rate of foreign ownership of public companies as stipulated in Point a, d and dd Clause 1 Article 12 hereof shall be composed of the followings:
a) The written notification of the maximum rate of foreign ownership of a company by adopting the form stipulated in Appendix 16 attached with this Circular, enclosing the valid copy of the establishment and operation certificate, business registration certificate or enterprise registration certificate;
b) Materials shall be additionally provided, including:
- If public companies are not subject to restrictions on the rate of foreign ownership as stipulated in Clause 2 Article 1 of the Decree No. 60/2015/ND-CP, they must additionally provide the followings:
Extracts of address and information posted on the national business registration portal, the national portal for foreign investment, or websites of competent state agencies or other valid documents of competent state agencies under the guidance of the State Securities Commission which help verify that companies are operating in industries and sectors which are not subject to restrictions on the foreign ownership rate; meeting minutes and resolutions of the management board on no restriction imposed on the foreign ownership rate (if companies do not set limits on the foreign ownership rate), or meeting minutes or resolutions of the general meeting of shareholders on restrictions on the foreign ownership rate and the company’s charter stipulating the maximum rate of foreign ownership (if companies set limits on the foreign ownership rate);
- If public companies are subject to restrictions on the rate of foreign ownership as stipulated in Clause 2 Article 1 of the Decree No. 60/2015/ND-CP, they must additionally provide the followings:
Extracts of address and information posted on the national business registration portal, the national portal for foreign investment, or websites of competent state agencies or other valid documents of competent state agencies relating to investment and business industries and sectors, and the foreign ownership rate (if any) imposed on investment and business industries and sectors in which companies are operating in accordance with legal regulations on investment, relevant laws, International Agreements or other materials under the guidance of the State Securities Commission on determination of investment and business industries and sectors and the foreign ownership rate imposed on companies;
- If state-owned enterprises carry out the equitization in the form of public securities offerings, the following must be additionally provided:
Documents of competent authorities on approving the equitization plan in which contents relating to the maximum foreign ownership rate must be specified.
2. Within a permitted duration of ten (10) working days of receipt of a full and valid amount of required reporting documents as stipulated in Clause 1 of this Article, the State Securities Commission shall confirm receipt of all required reporting documents from companies.
3. The abovementioned duration shall be exclusive of the duration when the State Securities Commission collaborates with competent state agencies in confirming information about the foreign ownership rate under the following circumstances:
a) Companies do not have investment and business industries and sectors, or operational scope of these industries and sectors are not clear, or investment and business industries and sections registered in the business registration certificate or enterprise registration certificate are not consistent with those available on the national business registration portal, the national portal for foreign investment or websites of competent authorities for investment and business industries and sectors;
b) Companies are operating in investment and business industries and sectors which Vietnam has not agreed upon in International Agreements.
4. Within a permitted duration of one (01) working day of receipt of the confirmation of the State Securities Commission, public companies shall post information on company's websites and notify the Stock Exchange (if companies are listing and registering their transactions), and the Vietnam Securities Depository, of the maximum rate of foreign ownership of companies.
5. Foreign investors shall trade securities according to the maximum rate of foreign ownership immediately after public companies disclose information about the maximum rate of foreign ownership of companies in accordance with regulations laid down in Clause 4 of this Article, except for those companies applying for the registration as public companies.
Article 14. Processes, procedures and documentation submitted to apply for consent to foreign organizations’ ownership of more than 51% of the charter capital of securities trading organizations
1. Foreign organizations meeting regulations laid down in Clause 21 and Clause 24 Article 1 of the Decree No. 60/2015/ND-CP and wishing to hold more than 51% of the charter capital of securities trading organizations must seek approval from such securities trading organizations before filing their documentation to obtain the permission from the State Securities Commission.
2. Documentation submitted to apply for the consent to foreign investors' ownership of more than 51% of the charter capital of securities trading organizations must include the followings:
a) The application form for the consent to trades performed to make an increase in the ownership rate by 51% of the charter capital of securities trading organizations by adopting the form given in Appendix 9 enclosed herein;
b) Agreements in principle on stock trading and capital contribution between trading parties (if any), enclosing the written authorization that foreign organizations grant securities trading organizations to go through the procedure for request for the trading approval;
c) The valid duplicate of the establishment and operation certificate, business registration certificate or equivalents;
d) The valid copy of the meeting minutes, resolutions of the general meeting of shareholders, the members’ council, or the decision of the owners of foreign organizations on purchasing shares to hold more than 51% of the charter capital of securities trading organizations in Vietnam;
dd) The duplicate of the meeting minutes, resolutions of the general meeting of shareholders, the members’ council, or the decision of the owners of securities trading organizations on allowing foreign organizations to purchase shares to own more than 51% of the charter capital of securities trading organizations (except for the situation in which foreign organizations carry out the tender offer in accordance with laws), enclosing the company’s charter in which the maximum rate of foreign ownership of securities trading organizations;
e) Commitment of foreign organizations to only using the owner's equity and other legitimate capital for buying shares, and commitment in which foreign investors undertake that they are not subject to ownership restrictions in accordance with regulations laid down in Point c Clause 7 and Point c Clause 8 Article 71 of the Decree No. 58/2012/ND-CP;
g) The latest annual financial statement which has been audited and the financial statements released in the latest quarter. If foreign organizations are parent companies, the consolidated financial statements released in the latest year and audited must be additionally provided. Information provided on audited financial reports must prove that foreign organizations meet regulations laid down in Point b Clause 6 Article 71 of the Decree No. 58/2012/ND-CP;
h) The confirmation of competent agencies or organizations in overseas countries where main offices of foreign organizations are located which certifies that foreign organizations are not put under control or special control or in other alarming state, and other materials proving that foreign organizations meet requirements stipulated in Clause 6, 10 Article 71 of the Decree No. 58/2012/ND-CP and Clause 24 Article 1 of the Decree No. 60/2015/ND-CP.
3. Materials written in foreign languages which are translated into Vietnamese and authenticated by an organization performing the translation function in accordance with Vietnamese legal regulations. Documents issued by competent foreign authorities which must be notarized and legalized by the consulate in accordance with relevant laws. The request for trading approval must be made into one (01) original copy directly submitted to the State Securities Commission or sent by posts.
4. Within a permitted period of fifteen (15) days of receipt of all statutory documents, the State Securities Commission shall issue the decision to grant permission to foreign organizations to perform transactions to hold more than 51% of the charter capital of securities trading organizations. In case of rejection, the State Securities Commission must send their written response and clearly state reasons for this.
5. Related parties must complete trading procedures after obtaining the permission for trades within six (06) months from the entry of the decision of the State Securities Commission into force. Where such transactions have not been completed within the abovementioned duration, the written permission of the State Securities Commission shall automatically become defunct.
After obtaining permission to own more than 51% of the charter capital of a securities trading organization, foreign organizations are not required to go through the procedure for request for approval granted by the State Securities Commission if translations are performed to serve the purpose of changing the rate of their ownership of that securities trading organization, including public offering or tender offer as stipulated in Clause 7 and Clause 8 of this Article.
6. Within a permitted duration of five (05) days from the date on which transactions have already been completed, securities trading organizations are obliged to send reports on transactional results to the State Securities Commission by adopting the form stipulated in Appendix 17 enclosed herein.
7. In the event that securities trading organizations carry out the non-public stock offering or public securities offering which results in an foreign investor’s ownership of more than 51% of the charter capital, securities trading organization shall be responsible for additionally providing related materials for the application for securities offering as prescribed in Clause 2 of this Article, and complying with legal regulations on securities offering.
8. In the event that foreign organizations intending to purchase shares to own more than 51% of the charter capital of securities trading organizations are public companies, foreign organizations shall be responsible for submitting one (01) set of documents as prescribed in Point a, c, dd, e, g, h Clause 2, 3 and 4 of this Article to the State Securities Commission and complying with securities laws on public offering.
Tìm kiếm
Thông tư 123/2015/TT-BTC (Bản Word)