Thông tư 40/2015/TT-NHNN

CIRCULAR

PROVIDING FOR OPENING AND USE OF SECURITIES ISSUING ACCOUNT IN VND FOR CARRYING OUT THE ISSUANCE OF SECURITIES IN VIETNAM OF NON-RESIDENT SECURITIES ISSUER

Pursuant to the Law on the State Bank of Vietnam No. 46/2010/QH12 dated June 16, 2010;

Pursuant to the Law on credit institutions No. 47/2010/QH12 dated June 6, 2010;

Pursuant to the Ordinance on foreign exchange control No. 28/2005/PL-UBTVQH11 dated December 13, 2005 and the Ordinance No.06/2013/PL-UBTVQH13 dated March 18, 2013 on amendment and supplementation of a number of articles of the Ordinance on foreign exchange control;

Pursuant to the Government’s Decree No. 70/2014/ND-CP dated July 17, 2014 providing in detailed for implementing a number of articles of the Ordinance on foreign exchange control and its amendment and supplementation Ordinance;

Pursuant to the Government’s Decree No.156/2013/ND-CP dated November 11, 2013 defining functions, tasks, powers and apparatus of the State Bank of Vietnam;

At the request of the Director of Foreign Exchange Management Department;

The Governor of the State Bank of Vietnam promulgates this Circular providing for opening and use of securities issuing account in VND for carrying out the issuance of securities in Vietnam of non-resident issuer.

Article 1. Scope of adjustment

This Circular provides for the opening and use of securities issuing account in VND for conducting collection and payment transactions concerning the issuance of securities in Vietnam of non-resident issuer.

Article 2. Regulated entities

1. Foreign issuers who are allowed to issue securities in Vietnam by the competent authorities of Vietnam.

2. Other organizations or individuals related to the opening and use of securities issuing account in VND of foreign securities issuers.

Article 3. Interpretation of terms

In this Circular, these terms can be construed as follows:

1. “Foreign issuer” is non-resident organization who is allowed to issue securities in Vietnam.

2. “Licensed credit institutions” include commercial banks, branches of foreign banks which are allowed to trade and supply foreign exchange services as stipulated by the State Bank of Vietnam (hereinafter referred to as the State Bank).

3. “Securities issuing account in VND” (hereinafter referred to as the securities issuing account) is a payment account in VND which is opened by a foreign issuer at a licensed credit institution for conducting collection and payment transaction as stipulated in this Circular.

Article 4. Principle of opening and use of securities issuing account

1. The foreign issuer must open 01 (one) securities issuing account for issuance of securities to 01 (one) investment project in Vietnam. If the foreign issuer is allowed to issue securities to several investment projects in Vietnam, 01 (one) securities issuing account must be opened for each of those projects.

2. Total earnings from each securities offering must be transferred to the securities issuing account. The licensed credit institution must block total earnings from the foreign issuer's securities offering until it has received the foreign issuer's request for raising such blockage and notice of securities offering results granted by the State Securities Committee of Vietnam in accordance with the securities law.

3. After the blockage is raised as stipulated at Clause 2 of this Article, the foreign issuer is allowed to use total earnings from its securities offering to conduct transactions as stipulated at Clause 2 Article 6 of this Circular.

Article 5. Opening and closing of a securities issuing account

1. The foreign issuer, after having obtained permission for issuance of securities in Vietnam, must open a securities issuing account for conducting collection and payment transactions as stipulated at Article 6 of this Circular.

2. In case of change of the licensed credit institution where the securities issuing account is opened, the foreign issuer must close the opened account and transfer total balance of this account into a new securities issuing account which is opened at another licensed credit institution.

3. Procedures for opening and closing of a securities issuing account are executed in accordance with regulations of the State Bank on opening and use of payment accounts at payment service providers.

Article 6. Use of a securities issuing account

The foreign issuer is allowed to use the securities issuing account for conducting collection and payment transactions in VND concerning its issuance of securities in Vietnam as follows:

1. Collection:

a) Collection is earned from its securities offerings in Vietnam;

b) The foreign issuer itself transfers from its payment account in VND for paying dividends and bond interests and fulfilling other liabilities concerning its issuance of securities in Vietnam.

2. Payment:

a) The foreign issuer makes transfer to its payment account in VND which is opened at the licensed credit institution for executing its approved investment projects in Vietnam in accordance with the laws.

b) The foreign issuer pays dividends and bond interests and fulfilling its liabilities with the investors;

c) The foreign issuer makes payments for buying back its own stocks issued in Vietnam in accordance with the laws.

d) The foreign issuer conducts other legal payment transactions concerning its issuance of securities in Vietnam.

Article 7. Responsibilities of the licensed credit institution

1. Request the foreign issuer to provide with documents and documentary evidence concerning its issuance of securities in Vietnam upon a securities issuing account is opened and used.

2. Block and raise blockade of securities issuing account with respect to total earnings from the foreign issuer’s securities offering as stipulated at Clause 2 Article 4 of this Circular.

3. Provide the foreign issuer with guidance for fulfilling procedures for opening and closing of a securities issuing account and conducting collection and payment transaction by this account in accordance with this Circular.

4. Check and keep all documents and documentary evidence concerning collection and payment transactions conducted by the securities issuing account in order that the provision of services is carried out for legitimate purposes and in conformity with the laws.

5. Comply with report policies as stipulated at Article 9 of this Circular.

Article 8. Responsibilities of the foreign issuer

1. Open and use the securities issuing account in compliance with this Circular.

2. Honestly and fully declare contents of collection and payment conducted by its securities issuing account; Provide with documents and documentary evidence concerning its issuance of securities in Vietnam at the request and guidance of the licensed credit institution.

Article 9. Report policies

1. The licensed credit institution where the foreign issuer’s securities issuing account is opened shall send a written report to the State Bank on the opening and closing situation of securities issuing account (according to forms specified at Annex No. 01 enclosed to this Circular) ahead of the 12^th of the month next to the month on which the securities issuing account is opened or closed.

2. Monthly, the licensed credit institution where the foreign issuer’s securities issuing account is opened shall send a written report to the State Bank on the collection and payment situation conducted by the opened securities issuing account (according to forms specified at Annex No. 02 enclosed to this Circular) ahead of the 12^th of the month next to the reporting month.

3. The licensed credit institution may make reports on opening and using situation of securities issuing account at the request of the State Bank in case of need.

Article 10. Inspection and supervision

1. The State Bank and branches of the State Bank located at provinces and cities directly under the Central Government shall, upon their competence, inspect and supervise the licensed credit institutions in their compliance with this Circular.

2. The inspected and supervised organizations and individuals shall provide with any documents in order that the inspection and supervision can be timely and effectively fulfilled in accordance with the laws.

Article 11. Response to violations

Any violation of this Circular, subject to each violation level, the foreign issuer and/or the licensed credit institution and other relevant organizations or individuals shall be punished in accordance with the laws.

Article 12. Implementation

1. This Circular shall take effect as of March 01, 2016.

2. The Chief of Office, the Director of the Foreign Exchange Management Department, Heads of relevant units affiliated to the State Bank, Directors of branches of the State Bank located in provinces and central-affiliated cities, Presidents of the Board of Directors, Presidents of the Member Boards, and General Directors (Directors) of credit institutions and branches of foreign banks shall implement this Circular.