The announcement stipulates that private fund managers need professional lawyers to issue legal opinions when filing. So, under what circumstances do you need to issue a legal opinion? Lawyer Liu Yongbin, director of PCG Private Equity Fund Committee, made the following five interpretations.
1, private fund managers need to file, and fund products don't need to file.
As we all know, there are generally two records in private equity fund business, one is the manager's record and the other is the fund product record. What everyone needs to know here is that these two filings are industry management filings, and they are not prerequisites for the contract to take effect during the operation of private equity funds. Not filing means publicity, punishment and lack of credibility, which makes it difficult to carry out private placement business, but it does not necessarily affect the effectiveness of contracts signed with other entities.
2. New private fund managers need it when applying for filing.
If a private fund manager applies for registration after February 5, 20 16 (inclusive), it shall submit a legal opinion on the registration of private fund managers as necessary application materials through the private fund registration and filing system. For an applicant institution of private fund manager who has submitted an application before February 5, 20 16 but has not completed the registration, it shall submit a legal opinion on the registration of private fund manager in accordance with the above requirements.
3. Private fund managers file records, but fund products do not need to be filed.
It is stipulated in the announcement that a registered private equity fund manager who has not filed a private equity fund product shall issue a supplementary legal opinion on the registration of private equity fund managers in accordance with the above requirements before applying for filing a private equity fund product for the first time.
4, private fund managers and private fund products for the record, according to the requirements of the China Foundation.
According to the announcement, China Fund Industry Association will require private fund managers who have registered private fund products to issue supplementary legal opinions on the registration of private fund managers according to specific circumstances.
5. Major events need to be changed.
Where a registered private equity fund manager applies to change major matters such as controlling shareholder, actual controller, legal representative and executive partner, or other major matters prudently identified by China Fund Industry Association, it shall submit a special legal opinion on major matters change of private equity fund manager.
In addition, we need to know:
Time point of issuing legal opinions
The signing date of the legal opinion on the registration of the private equity fund manager shall be within one month before the private equity fund manager submits the registration application.
The legal opinion has a clear conclusion.
Legal opinions shall not use vague words such as "basically meeting the requirements". Law firms and handling lawyers shall express reservations on matters that do not conform to relevant laws and regulations and the provisions of China Securities Regulatory Commission and China Fund Industry Association, or that cannot accurately judge their legal nature or legality after due diligence, and explain the corresponding reasons.
Elements of legal opinion taking effect
The legal opinion shall be signed by two practicing lawyers, stamped with the seal of the law firm and dated.
Due diligence list
The legal opinions put forward conclusive opinions on the application materials of the applicant's registration, industrial and commercial registration, specialized operation, shareholding structure, actual controllers, related parties and branches, operating infrastructure and conditions, risk management system and internal control system, outsourcing, legal compliance, and qualifications of senior management personnel.
1. Basic information of the company
1. 1 ? Companies, branches, subsidiaries (financial enterprises holding more than 5% shares, listed companies and other enterprises holding more than 20% shares, the same below) and other related parties (financial enterprises, asset management institutions or related service institutions controlled by the same controlling shareholder/actual controller, the same below) have established complete industrial and commercial files, including but not limited to establishment, previous changes, annual reports, good and warning information (for inquiries from the industrial and commercial departments, the industrial and commercial bureau files shall be affixed).
1.2 ? Is there any equity incentive, trust shareholding, entrusted shareholding, employee shareholding meeting or similar arrangement for related parties such as companies, branches and subsidiaries, and is there any equity change without industrial and commercial registration? If yes, please provide relevant agreements and materials.
1.3 ? The current valid business license, approval certificate, organization code certificate, statistical certificate, tax registration certificate, foreign exchange registration certificate, bank account opening license, social security registration certificate, provident fund account opening certificate and state-owned assets property right registration certificate of the company, branches, subsidiaries and other related parties (if any).
1.4 ? Please provide relevant documents for the major honors and awards won by the company since its establishment.
1.5 ? Whether the company, subsidiaries, branches and other related parties have been registered as private fund managers, if so, please provide relevant registration documents.
2. Shareholders of the company
2. 1 ? The current shareholding structure chart of the company shall be disclosed to the ultimate shareholder (actual controller) of each shareholder, that is, the natural person or the state-owned asset management institution (vertical structure chart).
2.2 ? Please provide the current valid qualification documents of each shareholder (copy of business license or ID card of enterprise as a legal person), and corporate shareholders shall also provide the articles of association and amendments to the articles of association of the shareholder. Natural person shareholders are requested to provide copies of their ID cards and questionnaires (including but not limited to name, gender, nationality, date of birth, name of the institution with the highest academic qualifications, education level, professional title, fund qualification, work experience and foreign investment).
2.3 ? If the company contains overseas investment shareholders, please provide the approval certificate of foreign-invested enterprises, and the materials that overseas investment institutions must provide: a complete set of registered information of overseas investment shareholders certified by notarization, the approval documents of China Securities Regulatory Commission, the approval certificate of foreign trade and economic cooperation departments, etc.
2.4 ? If the company has an actual controller, please provide the qualification certificate of the actual controller, industrial and commercial registration information and the actual controller's foreign investment.
2.5 ? Whether there are outstanding or potential major lawsuits and arbitrations between the shareholders, actual controllers and holding subsidiaries of the company; Whether there are violations, including violation of national laws, administrative regulations, departmental rules, self-discipline rules, etc. , subject to criminal, civil, administrative punishment or disciplinary action; Whether there are outstanding debts due, etc. Whether there is fraud or other dishonest behavior, if so, please provide relevant information.
3. Corporate governance and operation system
3. 1 ? Company organization chart (including all departments and all subordinate holding and shareholding companies) and departmental responsibilities.
3.2 ? The company's current effective systems include but are not limited to:
Basic systems: such as the rules of procedure of the three sessions, the general manager's work rules, the related party transaction system, the external guarantee system, the subsidiary management system, the financial management system, the operation management system, the administrative management system, the personnel management system, the confidentiality system and the post isolation system.
Supporting management systems: operational risk control system, information disclosure system, internal transaction record system, investment transaction system to prevent insider trading and conflict of interest, risk disclosure system of qualified investors, internal audit process of qualified investors and related systems, publicity and promotion of private equity funds, fair trade system (applicable to private equity fund business), and declaration system for securities trading by employees, etc.
4. The basic situation of the company's operation
4. 1 ? If the company operates infrastructure, please provide proof of business premises consistent with the company's registered place, and if it has its own property rights, provide proof of property rights; If it is leased, the lease contract and tax payment certificate must be provided.
4.2 ? Roster of employees of the Company, including but not limited to name, department, position, gender, age, native place, political outlook, marital status, education level, major, professional title, certificate type and number, salary, year of employment, labor contract signing (starting and ending dates of signing the labor contract for the first time, starting and ending dates of renewing the labor contract for the latest time, explanation of not signing the labor contract), and signing of other employment agreements (name of the agreement, description of not signing the labor contract)
4.3 ? The main business and concurrent business of the company, please provide the audited financial report and original financial statement of the company, subsidiaries and affiliated institutions in the latest year and the first period, and the company's main business contracts in the last 12 months.
4.4 ? Whether the company has signed a fund outsourcing service agreement with other institutions (including providing services such as sales, sales payment, share registration, valuation accounting, information technology system, etc.), please provide relevant outsourcing service agreements.
4.5 ? If the company has signed an outsourcing service agreement with other institutions, please provide the corresponding risk management framework and system of the company, as well as the company's due diligence report on the outsourcing institutions.
5. Company executives
5. 1 ? List of current senior management personnel of the company (including representatives, directors, supervisors, general manager, deputy general manager (if any), chief financial officer, secretary of the board of directors and compliance/risk control officer appointed by the legal representative/managing partner, etc.). ), and fill in the questionnaire respectively. Senior management questionnaire, including but not limited to name, gender, nationality, date of birth, name of the institution with the highest education, education level, professional title and work experience (occupation and position since joining the work). Please provide identification at the same time; Professional title certificate; Academic degree certificate; Fund qualification documents, etc.
5.2 ? Whether there are outstanding or potential major lawsuits and arbitrations for senior managers; Whether there are violations, including violation of national laws, administrative regulations, departmental rules, self-discipline rules, etc. , subject to criminal, civil, administrative punishment or disciplinary action; Whether there are outstanding debts due, etc. Whether there is fraud or other dishonest behavior, if so, please provide relevant information.
6. Litigation, arbitration or administrative punishment of companies (including companies directly or indirectly controlled)
6. 1 ? Law and supervision involved in the company: the industry supervision department and supervision structure of the company; Policies and regulations mainly applicable to the business involved in the company and their implementation; Predictable changes that may occur in major policies and regulations; The impact of the above-mentioned changes in laws and regulations on the company's operation.
6.2 ? Information about the unsettled and settled disputes, lawsuits and arbitration cases of the Company in the past two years, including but not limited to the complaint, arbitration application, appeal, evidence of both parties, opinions of agency, defense, judgment, conciliation statement, ruling, payment voucher, brief introduction of the latest progress of the case, prediction of the result of litigation or appeal (including the estimated time), claim amount and detailed explanation of the measures taken.
6.3 ? Has the company been subjected to administrative punishment in the past two years? If yes, please provide the penalty decision and payment voucher.
6.4 ? Reports or important communications of previous, present or expected investigations or inquiries (including formal and informal) conducted by any government department on the company; The above government departments include but are not limited to auditing, taxation, finance, industry and commerce, customs, industry and other regulatory agencies.
6.5 ? Does the company have any negative media reports? If yes, please provide relevant report documents and company statement.
6.6 ? Whether the company and its senior management personnel are subject to criminal punishment, administrative punishment by the financial supervision department or administrative supervision measures; Whether you have been disciplined by trade associations, please provide relevant certificates and credit reports of the company and senior management.