according to the survey data of nikko research center, the growth of American venture enterprises generally goes through three stages. In the early stage of a startup, angels (individual investors) invested in R&D for 1-2 years; After the venture enterprise runs for 2 ~ 5 years, the products leave the factory, and then venture capital is invested; When product sales are on the right track and investment enterprises want to expand production, they can raise a lot of capital through IPO. Can this process be completed as soon as possible? Can a venture enterprise succeed? The key is entrepreneurship and the support of IPO industry. Compared with the United States, China still lacks in these aspects.
first of all, full of entrepreneurial spirit. Americans will not let huge bureaucracies and big enterprises stand in the way of their future. Many of them will soon join the ranks of entrepreneurs after entering large institutions or enterprises. The American ideal is to be an entrepreneur, and as an entrepreneur, you must make achievements.
Second, venture capital, accounting law firms and investment bankers explore and discover venture enterprises and strive to support IPO. In America, angels make initial investments in enterprises. Venture capital not only invests in enterprises, but also participates in enterprise management, sales plan, financial strategy and talent recruitment. American accounting law firms also participate in the IPO operation of venture enterprises, charging certain service fees and consulting fees. Service charges are generally very cheap. In the United States, not only large investment banks like Merrill Lynch have many high-risk enterprises such as high-tech, biology, electronic communication and Internet, but also some small and medium-sized investment banks have more than 1, venture enterprise investors, and some even have a waiting list. These investment bankers dig and look for venture enterprises all over the United States, and strive to cultivate them into listed enterprises.
in China, the situation is quite different. It's hard to find "angels" in a venture technology. Even if there is, it is a state-owned enterprise or a state-owned scientific research institution, although sometimes the government will give some subsidies. Venture capital and accounting law firms hardly participate in IPO operation. They only have relations with enterprises when they start to set up or apply for listing, or when they encounter legal disputes. The investment concept of venture capital in China is short-term, and little attention is paid to the growth of enterprises, which can be reflected in the phenomenon of "fund insider" and "illegal stock speculation" in a stock market. China's investment funds are still far from perfect. Until now, the trust law and the investment fund law have not been promulgated. On the one hand, a large number of retail investors make irrational speculation in the environment of asymmetric technology and information; On the other hand, the number and scale of investment funds are small, which makes it difficult to meet the investment needs of investors. There are even fewer investment bankers in China, and it is difficult for China people to entrust their money to others for management, which is related to the lack of trust, responsibility and restraint. In the United States, investment bankers dig and collect venture enterprises everywhere, and train them to carry out IPO. In China, only when venture enterprises go public, they hire investment bankers to carry out "listing packaging".
It is under such circumstances that the fees paid by venture enterprises to accounting firms, securities firms and investment banks are quite expensive, especially the rent-seeking fees are much higher than the service fees. In order to establish China's Growth Enterprise Market, it is urgent to establish entrepreneurial spirit and cultivate risk talents. Establish our own IPO mechanism such as "venture capital, accounting firm, investment banker" and form our own IPO industry. We know that the high risk of venture enterprises comes from three aspects: technology, market and management.
due to the asymmetry of technology and information, it is difficult for small and medium-sized investors to resist market risks by directly investing in venture enterprises. Therefore, it is necessary to cultivate a large number of institutional investors, for example, to set up various specialized high-tech investment funds, such as online stock investment funds, new materials stock investment funds, bioengineering stock investment funds and so on. And these investment foundations do venture capital. Because of the large scale of investment, investment funds need to train a group of experts to conduct in-depth research and planning on the invested enterprises. The strong strength of investment funds may also train a large number of high-level experts who can judge and choose IPO enterprises and make rational investments. After holding the shares of start-up enterprises for a certain number of years, all kinds of investment funds are allowed to circulate and transfer in the stock market to realize the withdrawal of investment funds. In this way, on the basis of expert financial management, we will gradually form our own IPO system and industry.
the main legal issues involved in the restructuring and listing of state-owned enterprises.
series of legal issues concerning the restructuring and listing of state-owned enterprises (II)
legal system
conditions and procedures for restructuring and listing
legal issues involved in the restructuring and listing of enterprises
lawyers' work in restructuring and listing
IV. Legal issues involved in enterprise restructuring and listing
1. Company structure design
2. Independence and self-reliance
3. Standardized operation
4. Employee stock ownership
5. Tax issues
6. Disposal of intangible assets such as land use rights
Question 1: Company structure design (1)
Attention should be paid to the design of company structure.
(2) The actual controller of the listed entity cannot be changed in the last three years, and the main business and management remain basically unchanged, otherwise the continuous calculation of performance will be affected.
(3) The reorganization work before reorganization should be controlled within a certain range, so as not to constitute a major reorganization, otherwise it will affect the continuous calculation of performance.
(4) The listed entity shall not compete with the controlling shareholder, actual controller and other enterprises controlled by them. If other enterprises controlled by the same controller engage in businesses that compete with the listed entities, they shall reorganize the related businesses to the listed entities or transfer them to non-related parties.
(5) The business system of listed entities is complete, and they have the ability to directly face the market and operate independently, and their business operations and profits cannot rely on related party transactions.
(6) according to the specific situation of the enterprise, it is determined to carry out the restructuring by initiating the establishment, offering the establishment or changing the whole company from a limited liability company to a joint stock limited company. In case of reorganization by means of overall change, the listed entity should have an appropriate number of promoters (2 or more and 2 or less) before reorganization by means of equity reorganization (including equity transfer and capital increase), and more than half of the promoters have domicile in China; The sponsors of listed entities have appropriate qualifications, and trade unions and stock associations cannot be sponsors.
(7) The equity is clear and there is no potential ownership dispute. It is unacceptable to hold shares by proxy and trust.
Question 2: Independence (1)
The listed entity should be independent in assets, personnel, finance, institutions and business, and there is no serious defect in independence.
(1) the assets are complete.
the registered capital of the listed entity has been paid in full, and the procedures for the transfer of property rights of assets contributed by shareholders have been completed; It has the production system, auxiliary production system and supporting facilities related to production and operation, has the ownership or use right of land, factory buildings, machinery and equipment, trademarks, patents and non-patented technologies related to production and operation according to law, has clear ownership of assets, and has obtained the corresponding property right certificate.
(2) personnel independence.
the general manager, deputy general manager, financial controller, secretary of the board of directors and other senior management personnel of the listed entity shall not hold other positions except directors and supervisors in the controlling shareholder, actual controller and other enterprises controlled by them, and shall not receive remuneration from the controlling shareholder, actual controller and other enterprises controlled by them; Financial personnel shall not hold part-time jobs in controlling shareholders, actual controllers and other enterprises controlled by them; Listed entities have an independent personnel appointment and dismissal system, sign labor contracts with employees independently, and share accounts with shareholder units in terms of employee social security and wages.
(3) financial independence.
A listed entity shall establish an independent financial accounting system, be able to make financial decisions independently, and have a standardized financial accounting system and a financial management system for branches and subsidiaries; Do not use bank accounts with controlling shareholders, actual controllers and other enterprises controlled by them; Pay taxes independently.
(4) the organization is independent.
a listed entity shall establish and improve its internal management organization, exercise its management authority independently, and shall not be confused or collocated with the controlling shareholder, actual controller and other enterprises controlled by it.
(5) Business independence.
a listed company shall independently possess the qualifications related to business operation; It has an independent raw material procurement and product sales system, and its operation and profit do not depend on related party transactions.
Question 3: Standardized operation (1)
(1) Establish and improve the corporate governance structure, and relevant institutions and personnel such as shareholders' meeting, board of directors, board of supervisors, independent directors and secretary of the board of directors can perform their duties according to law.
(2) Establish and improve the internal control system and effectively implement it to ensure the reliability of financial reports, the legality of production and operation, and the efficiency and effectiveness of operation.
(3) define the approval authority and review procedures of external guarantee through the company's articles of association and other corporate governance documents, and shall not provide illegal guarantee for others (especially controlling shareholders, actual controllers and other enterprises controlled by them).
(4) the funds shall not be occupied by the controlling shareholder, actual controller and other enterprises controlled by them by borrowing, paying off debts, paying in advance or other means.
(5) Don't be entrusted with financial management in violation of regulations, and pay attention to prevent corresponding financial risks.
(6) No securities shall be publicly issued without authorization or in disguised form in the last 36 months; The relevant illegal acts occurred 36 months ago, but they are still in a continuous state and need to be cleaned up.
(7) There has been no serious violation of laws and administrative regulations on industry and commerce, taxation, land, environmental protection, customs, etc. in the last 36 months, and there has been no administrative punishment.
(8) there is an obvious violation of the relevant provisions of the state in business operations (although it is a common practice in the industry), which needs to be cleaned up. For example, some commercial enterprises issue tokens and shopping cards.
Question 4: Employee stock ownership (1)
When implementing employee stock ownership or management stock ownership plan before listing, the enterprises to be listed should pay attention to the following issues:
(1) Shareholders
Trade unions and stock associations cannot be the main shareholders, nor can they be implemented through proxy stock ownership or trust stock ownership. The more suitable operation mode is that natural persons hold shares directly or holding companies hold shares. If the listed entity is a foreign-invested enterprise, it cannot be directly held by a natural person.
(II) Design of equity management plan
Under the premise of legal permission, manage the related matters (including restricted transfer, forced transfer after leaving, unlisted repurchase, etc.) involved in employee stock ownership through appropriate arrangements. ).
(III) If the examination and approval
involves state-owned assets, the necessary examination and approval procedures must be performed.
question 5: tax issues.
tax issues have always been the focus of the audit, mainly involving the following aspects:
(1) whether the tax preferences enjoyed by listed entities comply with the provisions of national laws and regulations, and the tax preferential policies given by local governments do not conform to the provisions of the state and are unacceptable.
(2) The listed entity pays taxes according to law, including cases where there is no illegal tax punishment and the circumstances are serious; There is no unusually large tax arrears; Pay taxes independently in an appropriate capacity (for example, pay taxes according to small-scale taxpayers after reaching the standard of general taxpayers).
(3) The operating performance of listed entities is not highly dependent on tax incentives.
Question 6: Disposal of intangible assets such as land use rights.
the disposal of intangible assets is also a key issue in the process of listing, which involves the consideration of whether the ownership of listed assets is clear and whether there are uncertain risks in continuous operation.
(1) Land use rights are mainly obtained by means of transfer, shareholder investment, lease and authorized operation, and cannot be allocated.
(2) In general, a listed entity should own the trademarks, patents and know-how used in its business activities, but if there are reasonable reasons, it can also be handled by licensing.
(3) If the land use right is obtained by lease or the right to use other intangible assets is obtained by license, attention shall be paid to the appropriateness of the use period and the exclusiveness of the license, and there shall be no risk of uncertainty and potential adverse changes.
v. the role of lawyers in enterprise restructuring and listing
the joint-stock system reform and public offering and listing of shares is a complex systematic project, involving many intermediaries such as law, audit, asset evaluation and underwriting, as well as a lot of highly professional work. The reorganization and listing of the company is actually the crystallization of the cooperation of various intermediaries.
1. Due diligence
Conduct due diligence on relevant companies, assets and businesses included in the company's listing structure. Including:
review all legal documents in the historical evolution of company establishment and change, and confirm the legality of establishment and change;
review all documents on the ownership of the company's major assets and confirm their legality;
review all major contracts of the company;
review the legality of all foreign investment projects of the company and the authenticity of the property rights enjoyed by the company to be listed;
review the business license obtained by the company and confirm the legality of production and operation;
review the company's major creditor-debtor relationship;
review and confirm the legality of the applicable tax rate, tax preference and tax payment of the company;
review the company's trademark, patent and copyright related documents;
review the labor contracts signed between the company and employees, and confirm the legality of relevant labor relations;
review the company's outstanding lawsuits and arbitrations to determine whether there is the possibility of further litigation.
2. discuss and decide the restructuring and listing plan.
according to the legal problems found in due diligence, put forward suggestions or schemes to solve related problems. Discuss with relevant parties to determine the shareholding system reform and listing plan of this project.
3. Be responsible for drafting and reviewing relevant legal documents in the process of reorganization, including (but not limited to):
A series of documents of share reorganization, including resolutions of the board of directors, sponsors' agreements, articles of association of the joint-stock company, documents of the founding meeting, etc. ;
equity merger and reorganization agreement;
related party transaction agreement;
a series of documents submitted to relevant government departments;
other relevant resolutions of the board of directors and/or shareholders' meeting.
4. assist the company to communicate and coordinate with relevant government departments (including China Securities Regulatory Commission, Ministry of Commerce, National Development and Reform Commission and other relevant government departments) on government approval matters involved in this project.
5. assist the company to improve its corporate governance structure according to the requirements of relevant laws and regulations in China, including but not limited to the establishment of the board of directors and the board of supervisors, the rules of procedure of the shareholders' meeting and the board of directors, etc. And train the directors, supervisors and senior managers of your company according to the relevant regulations of China Securities Regulatory Commission.
6. issue relevant legal opinions, including (but not limited to):
issue an overall legal opinion to the China Securities Regulatory Commission on this project;
according to the feedback from China Securities Regulatory Commission, issue supplementary legal opinions on legal issues related to this project;
at the request of the company, issue special legal opinions on some specific legal issues of concern to the company or the sponsor institution.
7.