The CSRC audit focus:
According to the Measures for the Administration of Securities Issuance of Listed Companies, the Detailed Rules for the Implementation of Non-public Issuance of Shares by Listed Companies and other relevant laws and regulations, as well as the guidance of the CSRC window, the audit focus of the subscription object is as follows:
1. Compliance of subscription objects
According to Article 31 of the Detailed Rules for the Implementation of Non-public Offering of Shares by Listed Companies, the issuer's lawyer must give a clear legal opinion on the compliance of the subscription object of this non-public offering, that is, it must focus on checking whether the subscription object has the qualification to subscribe for this non-public offering.
2. Sources of subscription funds.
(1) China Securities Regulatory Commission requires
The CSRC generally requires intermediaries to check the sources of funds required for subscribers to subscribe for non-public offering of shares, as follows:
1) It is required to check whether the subscription object has the legal financial strength to subscribe for non-public offering shares, such as checking the property status of natural persons or natural person partners and checking whether the sources of subscription funds are legal and compliant.
2) Check whether the issuer, controlling shareholder, actual controller and their related parties directly or indirectly provide financial assistance or compensation to the investment company.
(2) Case experience
According to previous cases, when checking the source of funds of the subscription object, it is mainly based on the commitment letter issued by the subscription object.
3. Relationship
According to the relevant laws and regulations and the guidance of the CSRC [1] window, the CSRC generally requires intermediaries to check whether there is any relationship between the subscription object and the issuer's controlling shareholder and other related parties, and at the same time requires relevant commitments.
The subscriber shall issue a promise: "We and our ultimate subscriber do not include controlling shareholders, actual controllers or related parties, directors, supervisors, senior managers, lead underwriters and related parties related to the above institutions and personnel."
The controlling shareholder, actual controller and related parties controlled by the issuer, and the directors, supervisors and senior managers of the issuer shall issue a commitment: "I/the company and related parties with me/the company have not directly or indirectly participated in the issuance and subscription of this non-public offering of shares."
4. Asset share lock-up period.
According to the Feedback Opinions on Refinancing (hereinafter referred to as Feedback Opinions) issued by the Issuance Supervision Department on the websites of the CSRC on 20129/0/5 and 51June 2005, there are limited partnerships among listed companies that intend to issue shares in a non-public manner.
2015101during the training of sponsor representatives held in Beijing on October 28th, the CSRC put forward six-point window guidance. It is also mentioned: "During the lock-up period after issuance, the client or partner may not transfer the product share held by him or withdraw from the partnership". The guidance of this window is the inheritance and expansion of the feedback mentioned above. The feedback only restricts the partnership, while the window guidance issued on 20 15,1kloc-0/0/28 adds requirements for the asset management plan and contractual fund on the basis of the partnership, that is, the principals or partners of the partnership, asset management plan and contractual fund shall not transfer their product shares or quit the partnership during the lock-up period. We have confirmed the existence of this demand by analyzing 15 cases of online inquiry of Juchao.
In addition, regarding whether the principal and the partner are the only subjects who promise not to transfer products or quit the partnership, and whether the investors of the principal and the partner need to make the same promise, according to the 15 case we inquired, only the principal and the partner can promise not to transfer products or quit the partnership, and the CSRC did not ask the investors of the principal and the partner to make the same promise during the specific examination. See "Annex I: Summary of Related Cases" for specific cases.
In addition, in the case of the company as the subscription object, the CSRC has not made clear requirements on whether its shareholders or actual controllers can transfer shares to the outside world during the lock-up period. According to the case of 15 we inquired about on the tidal wave. Com, we have not found that when the subscription object is a company, its shareholders or actual controllers promise not to transfer their shares during the lock-up period.
2. The issuer is a natural person.
According to the disclosure requirements of Rule 25 and our experience in other projects, if the subscription object of non-public offering shares is a natural person, the following information usually needs to be checked when preparing the plan:
(1) Materials to be provided
1. Copy of ID card;
2. Work resumes of the past five years, including all individual full-time and part-time units, accurate to the month;
3. A written explanation of the source of funds for the subscription of this non-public offering, and provide proof of capital contribution and payment. If the investment source is labor remuneration, please explain the salary level; Please explain the way of equity investment or securities investment for investment income; Please explain the income from production and operation of enterprises or individual industrial and commercial households; For personal loans, please explain the borrower and the repayment of principal and interest; Please explain the source of family income.
4. Information of enterprises and affiliated enterprises invested or controlled by natural persons, including business licenses, partnership agreements or articles of association.
(2) Commitments or explanations that need to be made.
1. Commitment: Share lock-up commitment;
2. Description: Whether there is any relationship between the natural person and the issuer and its controlling shareholder, actual controller, other shareholders, directors, supervisors and senior managers.
3. Description: Whether there is any relationship between the natural person and the issuer's main customers and suppliers, employed/proposed intermediaries and signatories.
4. Description: Whether the natural person works in an enterprise controlled by the issuer and its subsidiaries, controlling shareholders or actual controllers; if so, please provide details of his work.
5. Please describe whether the natural person has been subjected to administrative punishment (except obviously unrelated to the securities market) or criminal punishment in the last five years, and whether it has involved in major civil litigation or arbitration related to economic disputes.
6. Description: 24 months before the disclosure of this issuance plan, whether there are any major transactions between natural persons and enterprises controlled by them and issuers and enterprises controlled by them. If yes, please disclose the specific matters, the amount incurred and the balance at the end of the year, as well as the proportion in similar transactions of listed companies. Whether the related party transactions have fulfilled the relevant decision-making and disclosure procedures. (touhangbu.com Investment Banking Department)
7. Description: After the completion of this issuance, whether there is horizontal competition and related transactions between natural persons and the enterprises controlled by them and the issuer. If yes, please specify the name, business scope, business income, income ratio, etc. of the companies that have had horizontal competition or related transactions with listed companies in the last three years.
3. The issuer is a company legal person and a partnership.
According to the above disclosure requirements and our experience in other projects, corporate and partnership enterprises (hereinafter referred to as "institutional investors") usually need to check the following information when preparing this plan:
(1) Documents required by institutional investors.
Business license, organization code certificate, tax registration certificate, bank account opening permit, articles of association/partnership agreement.
The latest annual audit report.
List of industrial and commercial registration and previous change registration information from the date of establishment to the present (industrial and commercial introduction).
A written explanation of the reasons why the institutional investor intends to invest in the issuer and the source of funds; Where the capital contribution is made by way of loan, a loan agreement for obtaining the capital shall be provided.
Authorization and approval procedures and related supporting documents (including but not limited to resolutions of the board of directors, shareholders' meeting, general manager's office meeting, investment management/decision-making committee, partners' meeting, etc.). Require institutional investors to invest in issuers.
A written explanation of the main business of the institutional investor; Internal organization chart, list of directors, supervisors and senior managers; Documents on election and appointment of directors, supervisors and senior managers; Copies of the identity cards of directors, supervisors and senior managers, and their work resumes in the past five years, including full-time and part-time units owned by individuals.
(2) Shareholders/partners of institutional investors are required to provide documents.
It can display the shareholding structure of controlling shareholders and actual controllers (traced back to natural persons, SASAC, listed companies, foreign-funded enterprises, institutions, social organizations, governments and government departments), and mark the shareholding ratio.
At present, there is no uniform scale for the openness of the ownership structure. According to the past case experience, there are cases that thoroughly check the ownership structure, such as the cases of "Shenkangjia A", "Yuntou Ecology", "Oriental Network", "Sujiaoke" and "Tiger Medicine". When verifying the ownership structure, these cases can be traced back to natural persons, SASAC, social organizations, listed companies, the government and government departments.
In addition, there are also cases in which the ownership structure is very simple, such as the case of non-public offering of shares referred to as "Beijing Culture". When Beijing Culture disclosed the ownership structure of Fude Life Insurance Co., Ltd., it only disclosed the first-class shareholders, all of whom were companies. At the same time, Beijing Culture made a statement under the shareholding structure: "Life Life has no controlling shareholder and actual controller". In addition, when Beijing Culture disclosed the investment proportion of Jiameng Equity Investment Partnership (Limited Partnership), it only disclosed the first-level partners, including four limited partnerships. It should be noted that this non-public offering of shares of Beijing Culture was approved by the CSRC on 20 15, 165438 10.
Corresponding to the above two situations, there are also relatively eclectic cases of penetrating verification of ownership structure, such as the case of non-public offering of shares with securities abbreviated as "Wei Yun Shares", "AVIC Electromechanical" and "Shunrong Sanqi". If it is difficult for these companies to disclose the shareholding structure of some subscribers, they should disclose the controlling shareholders or actual controllers on the basis of disclosing the first-class shareholders. Among them, Shunrong Sanqi is the most enlightening. In this case, there are only one layer of shareholders (the first layer of shareholders is a listed company without actual controller), and there are also cases of penetrating verification to the ultimate investor (disclosure of the shareholding structure of Ningbo Xinda Shengfeng Investment Partnership (Limited Partnership)), and there are also cases of disclosing the first layer and indicating the controlling shareholder and actual controller (disclosure of the shareholding structure of Guangzhou Aoyu Sante Culture Co., Ltd.). Shunrong Sanqi was approved by the Securities and Futures Commission on 2015165438+128 October.
To sum up, we understand that when disclosing the ownership structure of the subscription object, it should be disclosed to the ultimate investors (including natural persons, SASAC, government and government departments, institutions, corporate bodies, listed companies, foreign-funded enterprises, etc.). ) and show the controlling shareholder or actual controller; If it is difficult to disclose, the disclosure standard shall show the controlling shareholder and actual controller; If there is no controlling shareholder or actual controller, it shall be explained.
Natural person shareholders are required to provide the following information: a copy of ID card; Resumes of recent 5 years, including full-time and part-time units owned by individuals, accurate to the month; A written explanation of the source of funds for the subscription of institutional investors' shares, and proof of capital contribution and payment. If the investment source is labor remuneration, please explain the salary level; Please explain the way of equity investment or securities investment for investment income; Please explain the income from production and operation of enterprises or individual industrial and commercial households; For personal loans, please explain the borrower and the repayment of principal and interest; Please explain the source of family income.
Non-natural person shareholders have the following information: business license; A written explanation of the main business; The basic information table of industrial and commercial registration stamped with the chapter of industrial and commercial inquiry and the list of previous changes; The current effective articles of association for industrial and commercial record; The latest capital verification report; A written explanation of the source of funds for the subscription of institutional investors' equity/shares. If you contribute your own funds, please provide the balance sheet and cash flow statement at the time of contribution; If the capital contribution is made by way of loan, please provide the loan agreement for obtaining the capital.
(3) Non-natural person shareholders/partners of institutional investors (layer by layer traceability)
Trace the non-natural person shareholders of institutional investors layer by layer until the natural person, SASAC or collective economic organization level that ultimately holds shares;
Provide relevant information of controlling shareholders and actual controllers in accordance with the requirements of "(2) Shareholders/partners of institutional investors need to provide documents".
(4) Commitments or explanations that need to be made.
Commitment: a commitment to lock in shares.
Note: Whether the issuer's shares, institutional investors' equity/shares/capital contribution shares (including shareholders/partners traced back at different levels) to be acquired by institutional investors are entrustment, trust or interest transfer.
Description: Whether there is any relationship between institutional investors and their shareholders/partners (including shareholders/partners dating back to the final natural person) and issuers and their controlling shareholders, actual controllers, other shareholders, directors, supervisors and senior managers.
Description: Whether there is any relationship between institutional investors and their shareholders/partners (including shareholders/partners dating back to the final natural person) and the issuer's main customers and suppliers, employed/proposed intermediaries and signatories.
Note: Do institutional investors and their shareholders/partners (including those traced back to the last natural person), directors, supervisors, senior managers and executive partners hold positions in enterprises controlled by the issuer and its subsidiaries, controlling shareholders and actual controllers? If yes, please provide details of their positions.
Note: Whether the institutional investors, their directors, supervisors and senior managers have been subjected to administrative punishment (except those apparently unrelated to the securities market) or criminal punishment in the last five years, and whether they are involved in major civil litigation or arbitration related to economic disputes, if so, please specify.
Description: Whether there are any major transactions between institutional investors and issuers and enterprises controlled by them within 24 months before the disclosure of this issuance plan. If yes, please disclose the specific matters, the amount incurred and the balance at the end of the year, as well as the proportion in similar transactions of listed companies. Whether the related party transactions have fulfilled the relevant decision-making and disclosure procedures.
Note: After the completion of this issuance, whether there is horizontal competition and related transactions between institutional investors and their controlling shareholders, actual controllers and issuers. If yes, please specify the name, business scope, business income, income ratio, etc. of the companies that have had horizontal competition or related transactions with listed companies in the last three years.
4 The subscription object is the asset management plan.
(1) General disclosure requirements
When the subscription object is an asset management plan, the issuer discloses the management company of the asset management plan in the chapter of "Basic Information of the Subscription Object" in the Plan for Non-public Offering of Shares, and the asset management plan indicates the source of funds for its subscription of this share.
For the disclosure of the management company, please refer to the above "II" for the corresponding disclosure requirements. General disclosure requirements and audit points ",and the corresponding documents, explanations and commitments are shown in" IV ". The issue targets are corporate legal persons and partnerships. "
(2) Special requirements of the asset management plan
1. The main issues concerned by China Securities Regulatory Commission.
According to our recent feedback on similar projects, for asset management products, China Securities Regulatory Commission focuses on the following matters:
(1) Whether the funds entrusted for management as the subscription object are asset management products, and whether the products are legally established and filed;
(2) Whether participating in the subscription with the funds entrusted for management conforms to the provisions of Article 37 [3] of the Measures for the Administration of Securities Issuance of Listed Companies and Article 8 [4] of the Detailed Rules for the Implementation of Non-public Issuance of Shares by Listed Companies;
(3) Whether the client has structured arrangements such as graded income; If not, a letter of commitment should be issued; Please refer to "2" below for details. Limitations of three-year fixed income projects on the structured arrangement of asset management plans. "
(4) Whether the issuer, controlling shareholder, actual controller and their related parties violate the provisions of Article 16 [5] of the Measures for the Administration of Securities Issuance and Underwriting and publicly promise not to directly or indirectly provide financial assistance or compensation to asset management products and their customers;
The asset management contract and the conditionally effective share subscription contract shall clearly stipulate the following matters: a. Specific identity, number of customers, asset status, source of subscription funds, relationship with the applicant, etc. ; B after the non-public offering is approved by the CSRC, before the issuance plan is filed with the CSRC, the funds raised by the asset management products are in place; C. When the asset management product is established, it cannot effectively improve the guarantee measures or the liability for breach of contract; D. During the lock-up period, customers shall not transfer their share of products.
2. Constraints of three-year fixed income projects on the structural arrangement of asset management plans
According to what we have learned and the experience of previous projects, the CSRC recently put forward the following regulatory and information disclosure requirements for targeted pricing non-public offering projects, among which the subscription targets include asset management products:
(1) policy requirements
In the non-public offering project that requires directional pricing in the window guidance issued by CSRC in August 20 14, the subscription object shall not be structured products, that is, the issue object may be asset management products, but there shall be no other terms such as priority and similar grading arrangement, or unequal rights and obligations of holders. The guidance clearly prohibits individuals or institutions from participating in the private placement of listed companies through three-year structured products, and requires a three-year fixed increase. For three-year locked-in projects with directional pricing, listed companies must promise that "the final contribution does not include any leveraged structured design products".
In the window guidance issued in June 20 15 and10, the CSRC further emphasized that the three-year fixed-income investment management plan for Chinese businessmen cannot be arranged in a hierarchical (structured) way.
According to the cases we retrieved, that is, the cases of non-public offering of shares by listed companies, such as Huyao, Yuntou Ecology, Liaoning Chengda, Sujiao Branch, Shunrong Sanqi, Tongling Nonferrous Metals, Wei Yun Shares, AVIC Electromechanical, etc., all the subscribers in these cases participated in the asset management plan, and the asset management companies issued commitments.
(2) Operating requirements
1) According to the operational requirements stipulated in the window guidance of the CSRC in August 20 14, the issuer shall disclose the asset plan products by announcement; If the subscriber does not include the product, there is no need to publish an announcement.
The specific contents of the announcement refer to Mido Holdings' announcement on matters related to non-public offering of shares, including the commitment of the issuer and the sponsor institution on the source of funds and the full text of the issuer's asset management contract, and the commitment that the issuer's ultimate holders and beneficiaries are not related to the company and the lead underwriter, and the issuer's final contribution does not include any leveraged structure design products. The announcement can only be made after obtaining the consent of the five pre-judges of the CSRC in advance.
2) In addition to the original provisions, the commitment letter submitted at the same time when submitting the issuance plan to the CSRC must also make a commitment to the source and structure of funds. These commitments are as follows:
"The source of funds for this issuance of A and B is to raise funds from XXX, and the final contribution does not include any leveraged structured design products; The sources of funds for the issuers C and D are their own funds (or borrowed funds), and there is no situation of raising funds from third parties. "
3) Check the contents
Interview the controlling shareholder, actual controller, secretary of the board of directors and other senior management personnel of the company.
Letter of commitment issued by the controlling shareholder, actual controller, all directors, supervisors and senior management of the company (the content of the letter of commitment is: I/the company and related parties have not directly or indirectly participated in the issuance and subscription of this non-public offering of shares).
Consult the conditional share subscription contract between the company and the issuer to obtain the asset management contract of the issuer.
Letter of commitment issued by the asset manager and the customer.
The contents of the letter of commitment shall include: a, there is no relationship between the asset manager and the principal; B. The customer explains the source of funds and promises that it has not received any funding or compensation from the issuer; C. There is no structured arrangement such as graded income in the asset management plan; D. the product share will not be transferred during the sales restriction period.
With regard to the subject of issuing the letter of commitment, at the beginning of the guidelines issued in August 20 14, the CSRC required all issuers to refer to Mido Holdings' announcement on matters related to non-public offering of shares, that is, the ultimate holders and beneficiaries of the asset management plan were required to issue the letter of commitment. However, with the increase of cases in practice, the requirements for the subject of commitment are gradually relaxed. Related cases include the non-public offering of securities called "Tiger Medicine", "Shunrong Sanqi", "Tongling Nonferrous Metals" and "Sujiaoke". The subscription targets of these cases all include asset management plans, and whether there are structured arrangements in these asset management plans depends on the commitment of asset managers and customers.
In addition, in the case of non-public offering of shares, the supplementary contract of the subscription contract stipulates that there is no structured arrangement in the asset management plan of the subscription object. In the case of non-public offering of shares, referred to as "AVIC Electromechanical", it is stipulated in the asset management contract related to the asset management plan that no structured arrangement will be adopted. These cases also provide us with a new way of thinking, that is, the commitment of asset management plan to unstructured arrangements can be reflected in the commitment letter between asset manager and client, stock subscription contract and asset management contract.
4) Verify the conclusion
Brokers and lawyers need to make the following conclusions: "Where does the issuer participate in this non-public offering of the company, where does the funds come from, and the client subscribes with its own funds. The subscription funds do not directly or indirectly come from the issuer's directors, supervisors, senior managers and their related parties, and there is no structured design of leveraged financing. "
(3) Penetration verification requirements
Foundation and analysis of penetration verification requirements
(1) Basis of penetration verification requirements
20 15 The window guidance issued by the CSRC in June 10 has the following specific requirements for penetrating verification of asset management plans:
Investors are decided at the board stage. Investors participate in asset management plans and wealth management products. When the plan is announced, they are required to disclose it to the final investors (the issuing department will then inform the exchange to implement it in the audit announcement). The total number of all investors cannot exceed 200 (not applicable to the case of employee stock ownership plan participating in subscription), that is, it cannot become a disguised public offering; Cannot be arranged hierarchically (structured).
(2) Analysis guided by this window
1) Understand the scope of infiltration disclosure
Although the guidelines in this window are aimed at asset management plans and wealth management products, and require thorough disclosure to the ultimate investors, according to the cases we have learned so far, listed companies should thoroughly check not only the asset management plans, but also other subscribers such as companies, partnerships and contract funds, and ultimately all subscribers will have no more than 200 ultimate investors.
Therefore, when the subscription targets include asset management plans or wealth management products, it is necessary to thoroughly check all the subscription targets. The number of subscribers must be met at the same time: a. The number of subscribers must not exceed10; B the total number of final investors of the subscription object shall not exceed 200.
2) Understanding of the ultimate investors
It is generally understood that penetration verification often needs to penetrate SASAC, government and government departments, and natural persons. The window guidance of the CSRC does not specify the criteria for penetrating disclosure of the ultimate investor. According to the current cases, the penetrating disclosure of asset management plans and wealth management products should be aimed at natural persons, SASAC, government and government departments, joint-stock companies and limited companies. However, in the actual audit process of the CSRC, the verification that permeates the level of joint-stock companies and limited companies will also be released.
In addition, according to the "Feedback Opinions on Application Documents for Non-public Offering of Stocks" issued by the CSRC to Wuhu Shunrong Sanqi Mutual Entertainment Network Technology Co., Ltd. (hereinafter referred to as "Shunrong Sanqi"), it is clearly required that "whether the number of subscribers of natural persons, limited companies and joint stock limited companies exceeds 200". According to the feedback, we know that under the premise that there are asset management plans among the subscribers of Shunrong Sanqi non-public offering project, the scope of penetration verification of CSRC is extended to all subscribers, and the scope of penetration verification is extended to natural persons, limited companies and joint-stock companies.
Regarding the above "1) understanding of penetrating disclosure" and "2) understanding of ultimate investor", the relevant cases are as follows:
On June 365438+1October 3 1 day, 2065438, Yunnan Wei Yun Co., Ltd. issued the Explanatory Announcement on the Number of Subscribers after the Penetration of Non-public Offerings. Because the company's non-public offering subscription object includes the asset management plan (Huatai Yun Fan No.65438 +0 directional asset management plan), the subscription object is deeply disclosed. The number of subscribers finally disclosed is 48, with no more than 200. Infiltrate the verification boundary into natural persons, SASAC, government and government departments, joint stock companies and their actual controllers.
5. The subscription object is a private investment fund.
(1) General disclosure requirements
At present, private equity funds are mainly divided into three types: corporate private equity funds, partnership private equity funds and contractual private equity funds. Among them, corporate private equity funds or partnership private equity funds are established in the form of companies or partnerships, and also belong to companies or partnerships. Therefore, in the disclosure of corporate private equity funds and partnerships, the corresponding disclosure requirements refer to the above two. General disclosure requirements and audit points ",and the corresponding documents, explanations and commitments are shown in" IV ". The issue targets are enterprise legal persons and partnerships. "
When the subscription object is a contract fund, the issuer shall disclose the manager of the contract fund in the chapter "Basic Information of the Subscription Object" of the Plan for Non-public Offering of Shares, and the contract fund shall indicate the source of funds for its subscription of this share. According to Article 7 of the Interim Measures for the Administration of Private Investment Funds and Article 9 of the Measures for the Registration of Managers of Private Investment Funds and the Filing of Funds (Trial), managers of contractual funds must be companies or partnerships. Therefore, in the disclosure of contractual fund managers, the corresponding disclosure requirements should refer to the above two. General disclosure requirements and audit points ",the corresponding documents, instructions and commitments refer to" four ". The issue targets are corporate legal persons and partnerships. "
(B) the special requirements of private investment funds
1. All kinds of private equity investment funds shall go through the registration formalities.
In the window guidance provided by the CSRC to sponsors on the requirements of subscribers for non-public offering, it is required to check whether there are private investment funds among the subscribers who intend to participate in the non-public offering, and whether the funds have gone through the registration and filing procedures in accordance with the Interim Measures for the Supervision and Administration of Private Investment Funds, the Measures for the Registration and Filing of Private Investment Fund Managers (Trial) and other relevant laws and regulations.