2. Contractual private equity funds and asset management plans invest in listed companies and equity of listed companies in the New Third Board.
On 201510 June 16, the National Small and Medium-sized Enterprise Share Transfer System released "Questions and Answers on Institutional Business (I) —— Asset Management Plan and Issues Concerning Contractual Private Equity Fund's Investment in the Equity of Companies to be Listed in the New Third Board" (hereinafter referred to as "Questions and Answers on Institutional Business (I)). The institutional business Q&A (1) basically clarified the legality of asset management plans and contractual private equity funds holding shares of companies listed on the New Third Board, and further clarified that asset management plans and contractual private equity funds do not need to be reverted to actual shareholders when they are listed on the New Third Board. In practice, the shares of companies listed on the New Third Board held by these asset management plans and contractual private equity funds can be directly registered as product names. In addition, according to the Detailed Rules for the Management of Investor Suitability in the National Small and Medium-sized Enterprise Share Transfer System (Trial), collective trust plans, securities investment funds, bank wealth management products, asset management plans of securities companies, and financial products or assets managed by financial institutions or other institutions recognized by relevant regulatory authorities can all participate in the directional issuance of listed companies as investors.
The important legal issues involved in the asset management plan and the contractual private equity fund holding the equity of the company to be listed on the New Third Board are as follows:
1.？ The legal basis of enterprises' listing on the New Third Board.
2.？ There is no need to reduce shares.
According to the Regulation of Unlisted Public Companies No.4-Guidelines for the Examination of Matters Related to the Application for Administrative License by Unlisted Joint Stock Limited Companies with More than 200 Shareholders (Announcement No.201354 of the CSRC) (hereinafter referred to as "Guidance No.4"), if the financial plan is established and standardized in accordance with relevant laws and regulations and has been subject to securities supervision and management, therefore, Asset management plans of fund subsidiaries, securities companies registered with China Fund Industry Association and supervised by securities regulatory authorities, and contractual private equity funds do not need to be restored during listing review, but relevant information disclosure should be done well.
3.？ Shares can be directly registered as product names.
According to the institutional business question and answer (1), the shares of companies to be listed on the New Third Board held by asset management plans and contractual private equity funds can be directly registered as product names. The specific operation points are as follows:
First of all, when a company invested by an asset management plan or contractual private equity fund applies for listing, the sponsoring securities firm lists the asset management plan or contractual private equity fund as a shareholder in the prospectus for public transfer, and fully discloses the relationship between the asset management plan or contractual private equity fund and its manager and other products under the manager's name in the prospectus for public transfer. At the same time, the sponsoring brokerage firm will check the following matters and express clear opinions: (1) Whether the asset management plan or contractual private equity fund is established and standardized according to law and has fulfilled the relevant filing or approval procedures; (two) the source of funds for the asset management plan or contractual private equity fund and its legal compliance; (three) whether the investment scope is in line with the contract, and whether the investment is in compliance; (4) Whether the holder of the asset management plan or contractual private equity fund is the controlling shareholder, actual controller or director of the company to be listed on the New Third Board. Secondly, when a company invested by an asset management plan or contractual private equity fund passes the listing filing review and handles the initial registration of shares, the listing business department is responsible for checking whether the information of shareholders involved in the application form for initial registration of shares is consistent with the information disclosed in the public transfer statement. Finally, after checking that the share registration information is consistent with the disclosure information, the business department of China Clearing Issuer directly registers the shares in the name of asset management plan or contractual private equity fund.
3. Contractual private equity funds and asset management plans invest in listed companies and equity of listed companies.
1.？ Invest in the equity of the company to be listed.
Regarding whether contractual private equity funds and asset management plans can invest in the equity of listed companies, first of all, according to Article 8 of the Detailed Rules for the Implementation of Non-public Issuance of Shares by Listed Companies, trust companies, as issuers, can only subscribe with their own funds. Therefore, the trust plan cannot be used as the shareholder of the company to be listed, nor can it be used as the object of non-public offering. Secondly, although Article 8 of the Detailed Rules for the Implementation of Non-public Offering of Stocks by Listed Companies also stipulates that securities investment fund management companies can subscribe for the funds they manage. In practice, there are also many cases in which the asset management plan participates in the increase of A shares. Nevertheless, whether the asset management plan can be used as a shareholder of the company to be listed is still controversial, and brokers are mostly conservative in practice. Finally, although the Interim Measures for the Supervision and Administration of Private Investment Funds has made it clear that private investment funds can take the form of contractual organization, according to Article 13 of the Measures for the Administration of Initial Public Offering and Listing, the issuer's equity is clear, and there is no major ownership dispute between the controlling shareholder and the shareholders controlled by the controlling shareholder and the actual controller. Due to the requirements of China Securities Regulatory Commission for the clarity and stability of the shares of the company to be listed, as well as the prohibition of trust shareholding and entrusted shareholding, the contractual private equity funds directly appearing during the initial public offering (hereinafter referred to as "IPO") of the company may be cleaned up. At present, there are no successful cases in which asset management plans and contractual private equity funds directly serve as IPO shareholders of listed companies.
There is no clear standard for the calculation and disclosure of the number of shareholders of partnership funds as shareholders of listed companies. According to the No.4 guideline and the relevant materials of the CSRC's 20 10 guarantee training, the relevant information is summarized as follows:
(1) There are 1 partnership enterprises established and regulated in accordance with relevant laws and regulations, which are supervised by relevant regulatory authorities, except those that obviously want to avoid the requirement of 200 people. For example, if there are more than 200 people who directly or indirectly hold shares in the company for the sole purpose of holding shares, they are deemed to have more than 200 shareholders, and they can apply for IPO after the merger of shares in accordance with the No.4 Guidelines.
(2) The principle of information disclosure will be handled according to the requirements of corporate shareholders, and the specific content of information disclosure will be determined according to the identity of partners (promoters or non-promoters) and the shareholding ratio (controlling shareholders or actual controllers, more than 5% shareholders or promoters, and shareholders with smaller shareholding ratio).
(3) Sponsors and lawyers should check the information disclosed by the partnership, the historical evolution of the partnership and the main situation in the last three years.
(4) For a partnership that suddenly shares in the issuer, it is generally necessary to disclose the partners of the partnership step by step until the natural person who finally holds the rights and interests of the partnership.
If there is any doubt about the transaction of the partnership holding the issuer's equity, no matter how many shares it holds and what its status is, it needs to be checked in detail and comprehensively.
Therefore, whether contractual private equity funds will be disclosed, calculated or even required to be cleaned up is not a unified and clear conclusion, which needs specific analysis.
2.？ Participate in the fixed increase of listed companies
The most noteworthy thing for contractual private equity funds and asset management plans to participate in the fixed increase of listed companies is the interpretation of penetration rules. According to the latest Bao Dai training meeting on 20 15, 10, the CSRC conveyed relevant adjustments to the refinancing policies of listed companies, and tightened the examination of private placement investors, requiring that "if investors are identified at the board stage, if asset management plans and wealth management products are involved, they should be disclosed to the final investors, and the total number of all investors should not exceed 200 (. And it can't be layered (structured). " The above penetrating disclosure requirements are aimed at ensuring the fairness of shareholders, preventing the transfer of benefits and controlling disguised public offering, mainly for three-year locked-in offering. Under the guidance of the new regulations of the regulatory authorities, some listed companies have begun to actively respond to the requirements of the new regulations. In addition, judging from the announcement, the implementation standards of penetrating disclosure of the number of shareholders need to be unified.
Finally, the interpretation of the penetration rule requires not only penetration disclosure, but also the subscriber's rights and interests structure can't be changed, that is, from the plan disclosure to the audit stage, the product investor can't quit the partnership, can't transfer its share, can't reduce or increase its capital contribution, and can't change the shareholder structure of the limited company. Any change may be regarded as a major adjustment of the scheme.