1, contract fund contract guidelines
There is not much difference between private equity funds and Public Offering of Fund in the way of raising funds and the requirements of qualified investment, and the operation mode is relatively mature, mostly contractual. The contract guidelines of contractual funds adopt a more detailed guidance mode, which is specific to the specific content of the terms.
At the same time, due to the huge differences between private equity funds and private equity funds, Article 2 of the Contract Fund Contract Guidelines stipulates that private equity funds shall be governed by these Guidelines, and non-securities private equity funds such as private equity funds shall refer to these Guidelines.
2. Guide to Partnership and Company Contracts
Both of these guidelines are guided by the framework of mandatory clauses, and do not give detailed guidance on the specific expression of clauses.
In short, these guidelines are still very practical in the transition period when the private placement supervision rules are rapidly enriched, so hurry to collect them.
main body
Private investment fund manager:
In accordance with the relevant provisions of the Securities Investment Fund Law and the Interim Measures for the Supervision and Administration of Private Equity Funds, and with the approval of the Council of China Fund Industry Association, we hereby issue the Guidelines for Private Equity Fund ContractsNo. 1 (Guidelines for the Content and Format of Contractual Private Equity Fund Contracts), No.2 (Guidelines for the Articles of Association) and No.3 (Guidelines for Partnership Agreements). The above guidelines shall come into force on July 20 16 15.
I hereby inform you.
China fund industry association
201April 6 18
Guidelines for Private Investment Fund Contracts No.3 (Guidelines for Necessary Terms of Partnership Agreement)
20 16-04- 18 China fund industry association
1. These Regulations are formulated in accordance with the Securities Investment Fund Law (hereinafter referred to as the Fund Law), the Partnership Enterprise Law, the Measures for the Administration of Partnership Enterprise Registration, the Interim Measures for the Supervision and Administration of Private Equity Funds (hereinafter referred to as the Private Equity Fund Measures), and the Measures for the Registration of Private Equity Fund Managers and Fund Filing (for Trial Implementation).
Two. Where a private equity fund manager raises and establishes a private equity investment fund through limited partnership, it shall formulate a limited partnership agreement (hereinafter referred to as the "partnership agreement") in accordance with these Guidelines. The partnership agreement shall specify the necessary provisions stipulated in these guidelines. For matters not covered in these Guidelines, please refer to the Private Equity Fund Contract GuidanceNo. 1. The partnership agreement concluded by all parties shall meet the statutory basic requirements of relevant laws and regulations for the partnership agreement.
3. The term "partnership fund" as mentioned in these Guidelines refers to a private investment fund in which an investor establishes a limited partnership enterprise (hereinafter referred to as "partnership enterprise") in accordance with the Partnership Enterprise Law, and the general partner is jointly and severally liable for the partnership debts, and the fund manager is specifically responsible for the investment and operation.
4. Private fund managers and private fund investors shall make the following statements and commitments in bold on the first page of the partnership agreement, including but not limited to:
Private fund managers guarantee that they have been registered as private fund managers in China Fund Industry Association before raising funds, and list the registration code of managers. Private fund managers should further declare to investors that the registration of private fund managers and private funds by China Fund Industry Association does not constitute recognition of the investment ability and continuous compliance of private fund managers; Not as a guarantee for the safety of fund property. The private equity fund manager guarantees that relevant risks have been revealed before signing this contract; Have already understood the risk preference, risk perception and tolerance of private equity investors. Private fund managers promise to manage and use the fund property in accordance with the principles of due diligence, honesty and credit, prudence and diligence, and do not promise the profitability and minimum income of fund activities.
Investors of private equity funds declare that they are qualified investors according to the Measures for Private Equity Funds, and ensure that the source and use of the property conform to the relevant provisions of the state, have fully understood the terms of this contract, relevant rights and obligations, relevant laws and regulations and the risk-return characteristics of the invested funds, and are willing to bear the corresponding investment risks; Private equity investors promise that the basic information they provide to private equity managers about investment purposes, investment preferences, investment restrictions, property income, risk tolerance and so on is true, complete, accurate and legal, and there are no major omissions or misleading.
Five, the partnership agreement of the partnership fund shall have the following provisions:
(I) Basic information The partnership agreement shall contain the following information, and may also specify the conditions for changing such information:
1, name of partnership (marked "partnership");
2. The address of the main business place;
3. The purpose and business scope of the partnership enterprise (including words that can reflect the nature of private investment funds such as "fund management", "investment management", "asset management", "equity investment" and "venture capital");
4. Term of partnership.
(2) The partners and their investment partnership agreements shall specify the names, domiciles, methods, amount, proportion and payment period of the general partners and limited partners, and may also explain the procedures to be performed when the relevant information of the partners changes.
(III) Rights and obligations of partners The partnership agreement shall specify the basic rights and obligations of limited partners and general partners.
(4) The partnership agreement of the executive partner shall stipulate that the general partner shall be the executive partner, and the executive partner shall have the right to invest, manage, use and dispose of the property of the partnership, and accept the supervision of other general partners and limited partners. The partnership agreement shall specify the conditions and selection procedures that the executive partner should have, the rights of the executive partner and the measures to deal with breach of contract, the dismissal conditions and replacement procedures of the executive partner, and may also stipulate the remuneration (including performance sharing) and remuneration extraction methods, conflicts of interest and related transactions of the executive partner.
(5) Limited Partner A limited partner may not represent the partnership externally without performing the partnership affairs. However, the following acts of a limited partner shall not be regarded as the execution of partnership affairs:
1. Participate in the decision to join or quit the general partner;
2. Make suggestions on the management of the enterprise;
3 to participate in the selection of accounting firms to undertake the audit business of partnership enterprises;
4. Obtain the audited financial accounting report of the partnership enterprise;
5. Consult the financial information such as the financial accounting books of the partnership enterprise in cases involving their own interests;
6. When the interests in the partnership are infringed, claim rights or bring a lawsuit to the responsible partner;
7. When the executive partner is slow to exercise his rights, he shall urge him to exercise his rights or bring a lawsuit in his own name for the benefit of the partnership;
8. Provide guarantee for the partnership enterprise according to law.
The partnership agreement may stipulate the authority of the limited partner and the measures to deal with breach of contract, but it shall not stipulate that the limited partner participates in or participates in eight acts other than those specified in the preceding paragraph in any direct or indirect way, which shall not be regarded as the execution of partnership affairs.
(six) the partnership agreement of the partners' meeting shall specify the conditions, procedures and voting methods of the partners' meeting.
(VII) Management Mode The manager of a partnership fund may be the executive partner of the partnership enterprise, or may entrust other private fund management institutions to manage it. The partnership agreement shall specify the manager and management method, and the authority of the manager and the calculation and payment method of the management fee.
(VIII) Where the property of a partnership enterprise is managed by custody matters, the name of the custody institution or the scope of authorization of all partners to the executive partner on custody matters shall be stipulated in the partnership agreement, including but not limited to selecting the custodian and signing the custody agreement. If all partners unanimously agree not to entrust the partnership fund, it shall be clearly stipulated in the partnership agreement that the partnership fund shall not be entrusted, and the institutional measures and dispute settlement mechanism for ensuring the property safety of the investment fund shall be clearly defined.
(9) The partnership agreement on joining, withdrawing from partnership, transfer of partnership rights and interests and change of identity shall specify the conditions, procedures and related responsibilities of partners' joining, withdrawing from partnership and transfer of partnership rights and interests, as well as the procedures for mutual change between limited partners and general partners.
(X) Investment Matters The partnership agreement shall specify the investment scope, investment operation mode, investment restrictions, investment decision-making procedures, related party identification standards and avoidance system of the investment of the partnership fund, and stipulate the continuous monitoring, investment risk prevention, investment withdrawal, guarantee measures, debt and guarantee restrictions of the invested enterprise after investment.
(11) The agreement on profit distribution and loss sharing of a partnership enterprise shall specify the relevant matters concerning the ways of profit distribution and loss sharing of the partnership enterprise, which may specifically include the principles and order of profit distribution, the ways of profit distribution, the principles and order of loss sharing, etc.
(12) The tax undertaking partnership agreement shall specify the tax undertaking matters of the partnership enterprise.
(XIII) The partnership agreement on expenses shall stipulate the relevant matters concerning the accounting and payment of the expenses of the partnership enterprise, which may specifically include the principle of accrual of the expenses of the partnership enterprise, the scope of expenses to be borne, the calculation and payment methods, and the expenses to be borne by the general partner, etc.
(14) Financial and Accounting System The partnership agreement shall stipulate the conditions for bookkeeping, accounting year, audit, annual report and consulting accounting books of the partnership enterprise.
(XV) Information Disclosure System The partnership agreement shall stipulate the contents, methods and frequency of information disclosure of the partnership fund.
(16) The agreement on termination, dissolution and liquidation of the partnership shall specify the relevant matters concerning the termination and dissolution of the partnership, which may specifically include the conditions for the termination and dissolution of the partnership, liquidation procedures, liquidators and selection conditions, liquidation and distribution, etc.
(XVII) Modification of the partnership agreement The partnership agreement shall specify the reasons and procedures for the modification of the agreement.
(eighteen) the dispute settlement partnership agreement shall specify the dispute settlement method.
(19) The unanimous partnership agreement shall clearly stipulate that if the contents of the partnership agreement conflict with other agreements or documents between the partners, the partnership agreement shall prevail. If there are multiple versions of the partnership agreement with conflicting contents, the version filed with China Fund Industry Association shall prevail.
(20) Agreement on Backup of Share Information All partners agree that private fund managers, share registration institutions or other share registration obligors should back up the data of fund share registration (all partners) according to the regulations of China Fund Industry Association.
(21) Submission of disclosure information stipulates that all partners agree that private fund managers or other information disclosure obligors should back up the fund information disclosure information in accordance with the provisions of China Fund Industry Association.
The Chinese fund industry association is responsible for the interpretation of the intransitive verbs, which will come into force on July 5, 20 16.
Guidelines for Private Investment Fund Contracts No.2 (Guidelines for Essential Clauses of Articles of Association)
20 16-04- 18 China fund industry association
1. These Guidelines are formulated in accordance with the Securities Investment Fund Law (hereinafter referred to as the Fund Law), the Company Law, the Regulations on the Administration of Company Registration, the Interim Measures for the Supervision and Administration of Private Equity Funds (hereinafter referred to as the Private Equity Measures), and the Measures for the Registration of Private Equity Fund Managers and the Filing of Funds (for Trial Implementation).
Two, private fund managers through limited liability companies or joint stock limited companies to raise and set up private investment funds, shall formulate articles of association in accordance with these guidelines. The articles of association shall specify the necessary provisions stipulated in these guidelines. For matters not covered in these Guidelines, please refer to the Private Equity Fund Contract GuidanceNo. 1. The articles of association signed by investors shall meet the statutory basic requirements of relevant laws and regulations.
3. The term "corporate fund" as mentioned in these Guidelines refers to a private investment fund which is established by investors as an independent legal entity (hereinafter referred to as "company") and managed by the company itself or entrusted by a special fund manager. Investors in corporate funds are not only fund share holders, but also shareholders of the company, exercising corresponding rights and undertaking corresponding obligations and responsibilities in accordance with the articles of association.
4. Private fund managers and private fund investors shall make the following statements and commitments in bold on the first page of the Articles of Association, including but not limited to:
Private fund managers guarantee that they have been registered as private fund managers in China Fund Industry Association before raising funds, and list the registration code of managers. Private fund managers should further declare to investors that the registration and filing of private fund managers and private funds by China Fund Industry Association does not constitute recognition of the investment ability and continuous compliance of private fund managers; Not as a guarantee for the safety of fund property. The private equity fund manager guarantees that relevant risks have been revealed before signing this contract; Have already understood the risk preference, risk perception and tolerance of private equity investors. Private fund managers promise to manage and use the fund property in accordance with the principles of due diligence, honesty and credit, prudence and diligence, and do not promise the profitability and minimum income of fund activities.
The investor of the private equity fund declares that he/she is a qualified investor in accordance with the Measures for Private Equity Funds, and ensures that the source and use of the property conform to the relevant provisions of the state, and has fully understood the terms of this contract, relevant rights and obligations, relevant laws and regulations and the risk-return characteristics of the invested fund, and is willing to bear the corresponding investment risks; Private equity investors promise that the basic information they provide to private equity managers about investment purposes, investment preferences, investment restrictions, property income, risk tolerance and so on is true, complete, accurate and legal, and there are no major omissions or misleading.
Five, the articles of association of a corporate fund shall have the following provisions:
(I) Basic information The articles of association shall state the basic information of the company, including but not limited to the company name, domicile, registered capital, duration, business scope (including "fund management", "investment management", "asset management", "equity investment" and "venture capital" and other words that can reflect the nature of private investment funds), and the names/names, domiciles and legal representatives of shareholders.
(2) The shareholders' articles of association shall specify the mode, amount, proportion and duration of capital contribution by shareholders.
(3) The articles of association of shareholders' rights and obligations shall specify the basic rights and obligations of shareholders and the specific ways for shareholders to exercise their right to know.
(4) The articles of association for the purchase, withdrawal and transfer of shares shall specify the conditions and procedures for shareholders to increase capital, reduce capital, purchase shares, withdraw shares and transfer equity.
(5) The articles of association of the shareholders' (general) meeting shall specify the powers, convening procedures and rules of procedure of the shareholders' (general) meeting.
(6) The articles of association of the senior management personnel shall specify the methods of formation, powers, convening procedures, term of office and rules of procedure of the board of directors or executive directors, supervisors (committees) and other senior management personnel.
(7) The articles of association of investment matters shall specify the investment scope, investment strategy, investment operation mode, investment restrictions, investment decision-making procedures, related party identification criteria and avoidance system for related party investment, continuous monitoring of the invested enterprise after investment, investment risk prevention and investment withdrawal, etc.
(VIII) Management Mode Corporate funds can be managed by themselves or by entrusting other private fund management institutions. In case of independent operation, the management structure and investment decision-making procedures shall be clearly defined in the articles of association; If the management is entrusted, the name of the manager shall be specified in the articles of association, and the authority of the manager and the calculation and payment method of the management fee shall be listed.
(IX) Custody Matters If the company's property is managed, the name of the custodian institution or the scope of authorization of all shareholders to the board of directors/executive directors on custody matters shall be clearly defined in the company's articles of association, including but not limited to selecting the custodian and signing a custody agreement.
(10) If all shareholders of the company unanimously agree not to trust, it shall be clearly stipulated in the articles of association that the company's funds shall not be trusted, and the system measures and dispute settlement mechanism for ensuring the safety of investment funds and property shall be clearly defined.
(eleven) the articles of association of profit distribution and loss sharing shall stipulate the principles and implementation methods of profit distribution and loss sharing of the company.
(XII) Duty to Pay Taxes The articles of association of the company shall specify the company's duty to pay taxes.
(13) The articles of association of expenses shall specify the relevant expenses (including taxes and fees) undertaken by the company, the remuneration standards of the trustee and the custodian and the accrual method.
(14) The articles of association of financial accounting system shall stipulate the company's financial accounting system, including bookkeeping, accounting year, annual financial report audited by accounting firm, basic information of the company's annual investment operation, preparation and submission of major event reports, conditions for consulting accounting books, etc.
(XV) Information disclosure system The articles of association of the company shall stipulate the contents, methods and frequency of the company's fund information disclosure.
(16) The articles of association of termination, dissolution and liquidation shall specify the reasons for the termination and dissolution of the company and the liquidation procedures.
(17) The reasons and procedures for amending the Articles of Association shall be clearly defined.
(18) The articles of association shall clearly stipulate that if the contents of the articles of association conflict with the contents of the investment agreement or other documents between shareholders, the articles of association shall prevail. If there are multiple versions of the Articles of Association, the version filed with China Fund Industry Association shall prevail.
(XIX) Provisions on Backup of Share Information All shareholders agree that private fund managers, share registration institutions or other share registration obligors should back up the data of fund share registration (company shareholders) in accordance with the provisions of China Fund Industry Association.
(20) Submission of disclosure information stipulates that all shareholders agree that private fund managers or other information disclosure obligors should back up the fund information disclosure information in accordance with the provisions of China Fund Industry Association.
The Chinese fund industry association is responsible for the interpretation of the intransitive verbs, which will come into force on July 5, 20 16.
Private Investment Fund Contract Guidelines No.65438 +0
(Guidelines on the Content and Format of Contractual Private Equity Fund Contracts)
Chapter I General Provisions
Article 1 These Guidelines are formulated in accordance with the Securities Investment Fund Law (hereinafter referred to as the Fund Law), the Interim Measures for the Supervision and Administration of Private Equity Funds (hereinafter referred to as the Private Equity Measures), the Measures for the Registration of Private Equity Fund Managers and the Filing of Funds (for Trial Implementation) and other relevant provisions.
Article 2 Where a private equity fund manager raises and establishes a private equity investment fund by contract, he shall formulate a private equity investment fund contract (hereinafter referred to as the "fund contract") in accordance with these Guidelines; Private fund managers who set up private investment funds, venture capital funds and other investment funds through contract raising shall formulate private fund contracts with reference to these Guidelines.
Article 3 The words "private fund" and "private investment fund" shall be marked in the name of a fund contract.
Article 4 The parties to a fund contract shall follow the principles of equality, voluntariness, good faith and fairness in concluding a fund contract, safeguard the legitimate rights and interests of investors, and shall not harm the national interests and social public interests.
Article 5 A fund contract shall not contain false contents or misleading statements.
Article 6 Where a private equity fund is managed, the private equity fund manager, fund custodian and investor shall sign a fund contract in accordance with the requirements of these Guidelines. If the fund contract clearly stipulates that it is not managed, the system measures, custody mechanism and dispute resolution mechanism for ensuring the property safety of private equity funds shall be clearly defined in the fund contract according to the requirements of these Guidelines.
Article 7 Where there are explicit requirements in these Guidelines, the fund contract shall specify the relevant contents stipulated in these Guidelines. Under the premise of not violating the Fund Law, the Measures for Private Offering and relevant laws and regulations, the parties to the fund contract may agree on matters other than those stipulated in these Guidelines according to the actual situation. If some specific requirements of these Guidelines are not applicable to the parties, the parties may make reasonable adjustments and changes to the corresponding contents, but the manager shall make special disclosure to investors in the risk disclosure book and issue a written explanation when the fund contract is submitted to the China Fund Industry Association for the record.