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作者： 杨春宝，北京大成（上海）律师事务所高级合伙人
孙瑱，北京大成（上海）律师事务所律师 Preface In accordance with Tenth Questions and Answers relating to Private Fund Registration and Filing (hereinafter referred to as “Q&A 10”) promulgated by AssetManagement Association of China (hereinafter referred to as “AMAC”) on June 30,2016, those qualified wholly foreign-owned and Sino-foreign securities fundmanagement institutions will be able to operate private securities fundmanagement business in domestic China upon the approval of China SecuritiesRegulatory Commission (hereinafter referred to as “CSRC”) as well as beingregistered as private securities fund operator with AMAC. Given private equity fundmanagement institutions have not been set any restrictions on shareholdingratio of foreign investors by China regulators before, the release of Q&A10 means there shall be no any legal barriers for those qualified foreignfinancial institutions (hereinafter referred to as “QFFIs”) to enter intoChina’s Fund Industry as a whole. It was promulgated by AMAC onApril 18, 2016 three contract guidelines respectively for three kinds ofprivate investment fund, namely contractual private investment fund, corporateprivate investment fund and partnership private investment fund (hereinafterreferred to as “Fund Contract Guidelines”). Such guidelines include those essential terms of three kinds of privateinvestment fund contract which will be formally implemented on July 15,2016. Therefore, to better facilitateQFFIs to initiate their fund management business here in China, we intend to listdown those key guidelines as well as essential terms hereunder. 1. Guidelinesfor Contractual Private Investment Fund Contract
No. | Essential Terms | Brief Descriptions | 1 | Name of contract | including words such as “Private Fund” or “Private Investment Fund” | 2 | Trusteeship | trusteeship mode: 3-party contract signed by private fund operator, fund trustee and investors non-trusteeship mode: measures to ensure safety of assets and dispute resolution terms clearly identified | 3 | Preface | purpose, basis and principle for conclusion of contract | 4 | Definitions | explanations and instructions on words/expressions with specific legal meanings | 5 | Representations and Warranties (in bold) | Private Fund Operator: Registered private fund operator with code indicated; completion of risk reveal to and risk assessment of the investors; fund assets properly used in the principle of integrity, caution and diligence; no commitment made on profit/minimum benefit of the fund | 6 | Fund Trustee: properly manage fund assets in the principle of integrity, caution and diligence | 7 | Fund Investors: qualified investors; legal source and use of assets; fully understanding of the terms/rights/obligations of contract; willing to bear relevant investment risks; all information provided being true/complete/correct/legal without any material omission/ misunderstanding; aware of no commitment or guarantee on the profit of fund assets | 8 | Basic Information of Private Fund | name, operation method, planned total raising amount (if any), investment target and scope, term, original par value, structure (if any), trusteeship (if any), outsourcing (if any), etc. | 9 | Raising of Private Fund | institution, target, method and term of raising, subscription matters, cooling-off period of investment and returning visit, special account for fund raising and settling, etc. | 10 | Establishment and Filing of Private Fund | method of signing contract, conditions of establishment, management of failure of fund raising, forbidden to make investment before AMAC filing | 11 | Subscription, redemption and transfer of Private Fund | subscription and redemption: open day and time, method/price/process/confirmation/authority, amount limitation (with exception), costs, calculation method, recognition and management of large amount redemption, situations and management of rejection or stop; Transfer (optional term): method/process, responsibilities of private fund operator, registration of transfer | 12 | Rights and obligations | name/registered address/contact person and address/telephone number of contract parties; detailed rights and obligations of contract parties in accordance with Provisional Measures on Supervision and Administration of Privately-offered Investment Funds and relevant regulations | 13 | General meetings of fund-units holders and agency thereof | situations of convening general meetings of fund-units holders; authorities, appointment, personnel structure and change procedures of the agency of general meetings of fund-units holders; matters relating to general meetings of fund-units holders and agency thereof (convener and method of convening, time/content/method of meeting notice, relevant procedures, etc.) | 14 | Registration of fund units | all matters relating to registration of fund units | 15 | Investment of private fund | Investment target/scope/strategy/limitation, interest conflict and its management; performance benchmark (if any); financing/ securities lending and OTC securities businesses (if any) | 16 | Assets of private fund | Custody and disposition of fund assets, opening and management of relevant accounts of fund assets, safety measures and dispute resolution of fund assets under non-trusteeship mode | 17 | Arrangements on transaction and liquidation | procedures on the selection of securities and futures broker, arrangement on liquidation; check of capital; securities accounts and transaction records; capital liquidation of subscription or redemption; such matters relating to the investment orders of capital allocation and the receipt/settlement of the other payment under trusteeship mode only | 18 | Evaluation and accounting of fund assets | purpose, time, method, target, process, mistake management, suspension situation of evaluation; confirmation of the net value of fund units; management of special situations; accounting policies | 19 | Costs and taxation of private fund | Relevant matters of fund related costs; tax paying arrangement of contract parties | 20 | Income distribution of private fund | principle of income distribution; confirmation and notice of income distribution plan; execution method of income distribution | 21 | Information disclosure and report | variety, content, frequency and method of information disclosure; such information which is statutorily disclosed under Measures on Administration of Information Disclosure of Private-offered Investment funds; periodical disclosure to fund investors the net value of fund units reviewed by fund trustee; filing of disclosed information | 22 | Revelation of risks | potential risks during the management, operation or disposition of fund assets such as risks relating to delegated raising, outsourcing, hiring investment advisor, capital loss, fund operation, liquidity, failure of raising, investment target, taxing, etc. | 23 | Effectiveness, revision, cancellation and termination of fund contract | effective date; term; conditions and procedures of revision; situations of cancellation and termination | 24 | Liquidation of private fund | composition and responsibilities of liquidation team; procedures of liquidation; source and payment method of liquidation fee; distribution of remaining assets; notice arrangement of liquidation report; keeping of account books and files of liquidation; write-off of relevant accounts | 25 | Breach of contract | liabilities of the breaching party | 26 | Dispute resolution | negotiation; arbitration/litigation | 27 | Other matters | other necessary matters under fund contract |
2. Guidelinesfor Corporate Private Investment Fund Contract
No. | Essential Terms of Article of Associations | Brief Descriptions | 1 | Representations and Warranties (in bold) | Private Fund Operator: Registered private fund operator with code indicated; completion of risk reveal to and risk assessment of the investors; fund assets properly used in the principle of integrity, caution and diligence; no commitment made on profit/minimum benefit of the fund |
| Fund Investors: qualified investors; legal source and use of assets; fully understanding of the terms/rights/obligations of contract; willing to bear relevant investment risks; all information provided being true/complete/correct/legal without any material omission/ misunderstanding | 2 | Basic information | Name; registered address; registered capital; term; scope of business (including words such as “fund management”, “investment management”, “asset management”, “equity investment”, “venture investment”, etc.); name/address/legal representative of shareholder(s); conditions on the revision of such information | 3 | Contribution of shareholder(s) | method, amount, ratio and term of contribution | 4 | Rights and obligations of shareholder(s) | basic rights and obligations of shareholder(s); ways to exercise the right to know | 5 | Investment, withdrawal and equity transfer | Conditions and procedures on capital increase and decrease, investment, withdrawal and equity transfer | 6 | Shareholders meeting/General meeting of shareholders | Duties, procedures of convene and convention rules thereunder | 7 | Senior management | methods, duties, procedures of convene, term of office and convention rules of board of directors/executive director, board of supervisors/supervisor(s) and the other senior management personnel | 8 | Investment matters | scope/strategy/operation/method/limitation of investment; decision-making procedures; identification criteria of affiliates; evading system relating to investment of affiliates; sustained post-investment supervision/investment risk prevention/investment exit of invested enterprise | 9 | Management method | management structure and investment strategy procedures under self-management mode; name of operator, limitation of management, calculation and payment method of management fee under delegated management mode | 10 | Trusteeship | name of trustee or authorization scope on the trusteeship made by all shareholders to board of directors/executive director under trusteeship mode; safety measures for fund assets and dispute resolution mechanism under non-trusteeship mode | 11 | Income distribution and loss allocation | principle and execution method thereof | 12 | Tax assumption | relevant matters thereof | 13 | Costs and expenses | Standard and accrual method of relevant costs (including tax), remuneration of delegated operator and trustee | 14 | Financial and accounting rules | bookkeeping, fiscal year, annual financial report audited by accounting firm, basic situation of yearly investment and operation, draft and submission of important events, conditions for access to accounting book | 15 | Information disclosure | content, method and frequency thereof | 16 | Termination, dissolution and liquidation | procedures thereof | 17 | Revision of Article of Associations | causes and procedures thereof | 18 | Conformity | prevailing of content of Article of Associations in case of its inconformity with content of contribution agreement between/among shareholders or the other documents; prevailing of content of filed Article of Associations in case of inconformity between/among different versions of Article of Associations | 19 | Backup of fund units information | fund units information being backed up by fund operator, fund units registration authority or the other fund units registration obligators | 20 | Report of disclosed information | disclosed information being backed up by fund operator or the other information disclosure obligators |
3. Guidelinesfor Partnership Private Investment Fund Contract
No. | Essential Terms of Partnership Agreement | Brief Descriptions | 1 | Representations and Warranties (in bold) | Private Fund Operator: Registered private fund operator with code indicated; completion of risk reveal to and risk assessment of the investors; fund assets properly used in the principle of integrity, caution and diligence; no commitment made on profit/minimum benefit of the fund |
| Fund Investors: qualified investors; legal source and use of assets; fully understanding of the terms/rights/obligations of contract; willing to bear relevant investment risks; all information provided being true/complete/correct/legal without any material omission/ misunderstanding | 2 | Basic information | name (including the word of “partnership”); main business premise; term; scope of business (including words such as “fund management”, “investment management”, “asset management”, “equity investment”, “venture investment”, etc.); conditions on the revision of such information | 3 | Partners and their Contribution | name and address of general partner(s) and limited partner(s); method, amount, ratio and term of contribution; procedures of change of such information | 4 | Rights and obligations of partners | basic rights and obligations of general partner(s) and limited partner(s) | 5 | Executive partner(s) | general partner(s) being executive partner(s) to make investment of, manage, utilize, dispose partnership assets under the supervision of the other general partner(s) and limited partner(s); qualification, selection procedure, extent of power, breaching treatment, removal conditions and change procedure of executive partner(s) | 6 | Limited partner(s) | no directly/indirectly involvement in implementation of partnership affairs except for the eight kinds of behaviors under Article Sixty-eight of Partnership Enterprise Law of P.R.C | 7 | Partners’ meeting | convening conditions, procedures and voting methods thereof | 8 | Management method | fund operator (can be executive partner or any other delegated private fund management institution); management method; extent of power of fund operator; calculation and payment method of management fee | 9 | Trusteeship | name of trustee or authorization scope on the trusteeship made by all partners to executive partner(s) under trusteeship mode; safety measures for fund assets and dispute resolution mechanism under non-trusteeship mode | 10 | Participation and withdrawal, transfer of partnership interest and identity change | Conditions, procedures and relevant responsibilities of participation and withdrawal, transfer of partnership interest and identity change; procedures on interconversion between limited partner(s) and general partner(s) | 11 | Investment matters | scope/operation method/limitation/decision-making procedures of investment; identification criteria of affiliates; evading system relating to investment of affiliates; sustained post-investment supervision/investment risk prevention/investment exit of invested enterprise; guarantee measures/leverage/guarantee limitations on invested enterprise | 12 | Income distribution and loss allocation | principle and execution method thereof | 13 | Tax assumption | relevant matters thereof | 14 | Costs and expenses | accrual principles, scope of expenses borne, calculation and payment method of expenses thereof partnership enterprise as well as such expenses to be borne by general partner(s) | 15 | Financial and accounting rules | bookkeeping, fiscal year, audit, annual financial report, conditions for access to accounting book, etc. | 16 | Information disclosure | content, method and frequency thereof | 17 | Termination, dissolution and liquidation | conditions of termination and dissolution; liquidation procedures; liquidator and condition of its appointment; repayment and distribution | 18 | Revision of partnership agreement | causes and procedures thereof | 19 | Dispute resolution | Methods of dispute resolution | 20 | Conformity | prevailing of content of partnership agreement in case of its inconformity with content of the other agreement(s) or documents among partners; prevailing of content of filed partnership agreement in case of inconformity between/among different versions of partnership agreements | 21 | Backup of fund units information | fund units information being backed up by fund operator, fund units registration authority or the other fund units registration obligators | 22 | Report of disclosed information | disclosed information being backed up by fund operator or the other information disclosure obligators |
Closing With China’s easing away of legalbarriers on foreign-invested private fund management entities and with theformal implementation of Fund Contract Guidelines, we firmly believe that moreand more overseas financial institutions will grab China’s Private FundManagement Market which may boost relevant industries. Meanwhile, with theformal implementation of AdministrativeMeasures for the Fundraising by Private Investment Funds on July 15, 2016,it can be expected that more relevant feasible laws and regulations will becontinuously published to better regulate private fund industry of China. Therefore, it will be of vital importance for suchoverseas financial institutions to pay close attention to the latest laws andregulations for more smooth and efficient investment in China.
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