Thông tư 46/2018/TT-NHNN thủ tục chuyển tiếp cổ đông sở hữu cổ phần từ 5% trở lên

CIRCULAR

PROVIDING REGULATIONS ON TIME LIMITS, PROCESSES AND PROCEDURES FOR TRANSITION APPLIED TO CASES IN WHICH MAJOR SHAREHOLDERS OF A CREDIT INSTITUTION AND RELATED PERSONS THEREOF OWN SHARES EQUALLING AT LEAST 5% OF CHARTER CAPITAL OF ANOTHER CREDIT INSTITUTION

Pursuant to the Law on State Bank of Vietnam dated June 16, 2010;

Pursuant to the Law on Credit Institutions dated June 16, 2010 and the Law on Amending and Supplementing certain Articles of the Law on Credit Institutions dated November 20, 2017;

Pursuant to the Government's Decree No. 16/2017/ND-CP dated February 17, 2017, defining the functions, tasks, powers and organizational structure of the State Bank of Vietnam;

Upon the request of the Banking Inspection and Supervision Chief;

The State Bank’s Governor hereby promulgates the Circular providing regulations on time limits, processes and procedures for transition applied to cases in which major shareholders of a credit institution and related persons thereof own shares equaling at least 5% of charter capital of another credit institution.

Article 1. Scope and subjects of application

1. This Circular deals with time limits, processes and procedures for transition applied to cases in which major shareholders of a credit institution and related persons thereof own shares equaling at least 5% of charter capital of another credit institution (hereinafter referred to as ownership of shares beyond allowed limits) before the effective date of the Law No. 17/2017/QH14 on amendments and supplements to certain articles of the Law on Credit Institutions.

2. This Circular shall not apply to cases of ownership of state-owned shares in credit institutions.

Article 2. Definition

For the purposes of this Circular, terms used herein shall be construed as follows:

1. Presiding credit institution refers to:

a) Credit institution with major shareholders and related persons thereof that own shares making up at least 5% of charter capital of another credit institution; or

b) Credit institution with major shareholders that is selected under agreements between credit institutions as the one presiding over the formulation of the plan for remedy for the ownership of shares beyond allowed limits in case these credit institutions have the same major credit institutions; or

c) Credit institution with major shareholders which owns the highest percentage of shares in case credit institutions having the same major credit institutions fail to reach an agreement to appoint a credit institution to preside over the formulation of the plan for remedy for the ownership of shares beyond allowed limits as provided in point b of this clause.

2. Other credit institution refers to:

a) Credit institution of which at least 5% of charter capital is owned by shareholders, which are major shareholders in that credit institution, and related persons thereof; or

b) Credit institution having a major shareholder that is not the presiding credit institution as provided in point b and c of clause 1 of this Article.

Article 3. Time limits, processes and procedures for transition

1. The credit institution shall cooperate with its major shareholders in reviewing and determining the list of major shareholders and related persons thereof that own shares making up at least 5% of charter capital of another credit institution (hereinafter referred to as group of related major shareholders).

2. The presiding credit institution in collaboration with another credit institution and the group of related major shareholders shall work out the plan for remedy for the ownership of shares beyond allowed limits (hereinafter referred to as remedial plan) and implement the remedial plan in order to ensure, by December 31, 2020 at the latest, the percentage of ownership of shares by the group of related major shareholders conforms to provisions of the Law on Credit Institution (revised and supplemented version). The remedial plan must include, but not limited to, the followings:

a) List of related major shareholders, including the following information:

(i) Major shareholder that is an individual: Full name; ID or citizen ID card or passport number or number of other personal identification paper, issue date and place; permanent address; details about the number of shares and percentage of shares making up charter capital which this major shareholders is holding in a presiding and other credit institution (including quantity, percentage of shares constituting charter capital which are entrusted to other organization and individual; particulars of the entrusted organization or individual, and relationship between the entrusted organization or individual and that major shareholder (if any));

(ii) Major shareholder that is an organization: Full name; number of the certificate of enterprise registration or the like, issue date, place and tax identification number; main office address; details about the number of shares and percentage of shares making up charter capital that this major shareholders is holding in a presiding and other credit institutions (including quantity, percentage of shares constituting charter capital which are entrusted to other organization and individual; particulars of the entrusted organization or individual, and relationship between the entrusted organization or individual and that major shareholder (if any));

(iii) Related persons of a major shareholder: Relationship with the major shareholder and other information to be provided by individuals as prescribed in point a(i) of this clause or by organizations as prescribed in point a(ii) of this clause;

b) Remedial method and roadmap.

3. Presiding credit institutions shall send the State Bank (care of the Bank Supervision and Inspection Agency), other credit institution, and group of related major shareholders, remedial plans within a period of 90 days after this Circular enters into force.

4. Bank Supervision and Inspection Agency shall direct presiding credit institutions to complete the remedial plans (where necessary); shall monitor and oversee implementation of remedial plans.

Presiding credit institutions shall cooperate with other credit institutions and groups of related major shareholders in completing remedial plans and send complete remedial plans to the State Bank (care of Bank Supervision and Inspection Agency), other credit institutions and groups of related major shareholders within a period of 05 working days from the date of formulation of complete remedial plans.

5. From the effective date of this Circular, groups of related major shareholders shall not be allowed to increase the number of shares that they own in presiding and other credit institutions in any form, except in the following situations:

a) They receive bonus shares or share dividends paid in a form of shares;

b) They buy shares which are additionally issued by presiding and other credit institutions to increase their charter capital, but are obliged to ensure that the ownership percentage of these shares is within allowed limits defined in Article 55 of the (amended or supplemented) Law on Credit Institutions.

6. Presiding and other credit institutions shall not be allowed to grant credit or re-issue new credit (in case credit has already been granted) to groups of related major shareholders within the duration of 90 days after the entry into force of this Circular until these groups of related major shareholders comply with the ownership percentages of shares defined in Article 55 of the (amended and supplemented Law on Credit Institutions.

7. In case where both individual and organizational shareholders belonging to groups of related major shareholders have representatives that are members of the Management Boards, members of the Control Boards, Directors General (Directors) of presiding and other credit institutions, and are holding shares beyond allowed limits, they shall be allowed to transfer the ownership of these shares.

8. The transfer of the ownership of shares beyond allowed limits in such cases as purchases of shares by foreign investors; trading and transfer of shares by major shareholders; trading and transfer of shares resulting in changing major shareholders into common shareholders and vice versa, shall be subject to legislation on foreign investors' purchases of shares of Vietnamese credit institutions, regulations of the State Bank on application requirements, processes and procedures for approval of changes in credit institutions and foreign bank branches.

Article 4. Responsibilities of presiding credit institutions

1. Push other credit institutions and groups of related major shareholders to implement remedial plans.

2. On a quarterly basis (prior to the 10^th day of the month following the reporting quarter), cooperate with other credit institutions and groups of related major shareholders in sending reports on results of implementation of remedial plans to the State Bank (care of Bank Supervision and Inspection Agency), including the following details:

a) Results of remedy for the ownership percentage of shares beyond allowed limits, achieved by groups of related major shareholders;

b) Cases in which implementation of remedial plans is not on schedule, reports on difficulties or queries (if any) and recommended solutions.

3. Report on issues relating to shareholders and shares upon the request of the State Bank (if any).

4. Ensure that groups of related major shareholders comply with the ownership percentages of shares defined in Article 55 of the (amended and supplemented) Law on Credit Institutions in case of purchase of additionally issued shares as provided in point b of clause 5 of Article 3 herein.

5. Bear legal liability for accuracy and adequacy of information provided to the State Bank, other credit institutions and groups of related major shareholders.

Article 5. Responsibilities of other credit institutions

1. Cooperate with presiding credit institutions and groups of related major shareholders in formulating and completing remedial plans; make necessary arrangements for implementing remedial plans to ensure compliance with provisions of this Circular and other relevant legislation.

2. Cooperate with presiding credit institutions in pushing groups of related major shareholders to implement remedial plans.

3. Prepare reports on results of implementation of remedial plans (clarifying difficulties, problems and recommended solutions) upon the request of presiding credit institutions which are consolidated into a general report submitted to the State Bank.

4. Report on issues relating to shareholders and shares upon the request of the State Bank (if any).

5. Ensure that groups of related major shareholders comply with the ownership percentages of shares defined in Article 55 of the (amended and supplemented) Law on Credit Institutions in case of purchase of additionally issued shares as provided in point b of clause 5 of Article 3 herein.

6. Bear legal liability for accuracy and adequacy of information provided to the State Bank and presiding credit institutions.

Article 6. Responsibilities of groups of related major shareholders

1. Responsibilities of major shareholders

a) Cooperate with presiding and other credit institutions in formulating and completing remedial plans; make necessary arrangements for implementing remedial plans to ensure compliance with provisions of this Circular and other relevant legislation;

b) Prepare reports on results of implementation of remedial plans (clarifying difficulties, problems and recommended solutions) upon the request of presiding credit institutions which are consolidated into a general report submitted to the State Bank;

c) Bear legal liability for accuracy and adequacy of information provided to presiding and other credit institutions.

2. Responsibilities of related persons of major shareholders

a) Cooperate with major shareholders, presiding and other credit institutions in formulating and completing remedial plans; make necessary arrangements for implementing remedial plans to ensure compliance with provisions of this Circular and other relevant legislation;

b) Bear legal liability for accuracy and adequacy of information provided to presiding and other credit institutions as well as major shareholders.

Article 7. Entry into force

1. This Circular shall enter into force from March 1, 2019.

2. Clause 1 and 2 of Article 3 in the Circular No. 06/2015/TT-NHNN dated June 1, 2015 of the Governor of the State Bank of Vietnam, prescribing time limits, processes and procedures for transition applied to cases of ownership of share beyond allowed limits defined in Article 55 of the Law on Credit Institutions, shall be repealed.

Article 8. Implementation responsibilities

The Chief of the Office, Banking Inspection and Supervision Chief, Heads of affiliates of the State Bank, Directors of State Bank branches in centrally-affiliated cities and provinces, Chairs of Management Boards, and General Directors (Directors) of credit institutions, shall be responsible for implementing this Circular./.

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