If a mainland enterprise wants to list overseas, it is indispensable to set up a VIE or red-chip structure, so it will involve the registration of Circular No. 37 (Notice on Issues Concerning Foreign Exchange Administration of Overseas Investment and Financing and Round-trip Investment by Domestic Residents through Special Purpose Companies, Hui Fa [2014] No. 37). Below, Huayixin will take you to have an in-depth understanding of the registration process of Circular 37 to help you go abroad smoothly and compliantly during the listing process.
The registration of Circular 37 needs to be completed before the "capital contribution". In the establishment of a red-chip structure, the connection of the domestic and foreign structures, i.e., the establishment of a WFOE or the change of a domestic operating entity to a WFOE is deemed to have been completed. In practice, some banks require the registration of Circular 37 before a domestic entity can complete the transformation of a domestic entity from a domestic-funded enterprise to a Sino-foreign joint venture. Therefore, it is recommended that enterprises communicate with the bank to confirm in advance when the registration of Circular 37 will be completed.
Step 1: Set up a domestic equity company
Generally speaking, a domestic natural person needs to establish a limited liability company first, and the equity holder becomes a shareholder of the limited liability company. In addition, the registration of Circular 37 needs to be filed with the bank in the place where the domestic equity (domestic company) is registered.
Step 2: Chinese set up overseas companies
The setup process is as follows: first set up BVI, followed by Cayman, and then set up HK company.
Step 3: Circular 37 registration
The registration of Circular 37 needs to be completed by the bank, and a professional intermediary will generally assist in the collection and collation of documents, and the preparation of the documents will need to be completed with the assistance of experienced foreign exchange specialists, the list of which is as follows (subject to slight changes by region and bank).
1. Application for foreign exchange registration for overseas investment by an individual domestic resident.
2. Foreign exchange registration form for overseas investment by domestic residents.
3. The front and back of the applicant's ID card.
4. Special Purpose Company (SPV) Registration Certificate, Register of Shareholders and Register of Subscribers.
5. Resolution of the shareholders' meeting of the domestic equity company.
6. Business license of domestic equity company (original copy).
7. The articles of association of the domestic equity company stamped with the inquiry seal of the archives management center of the industrial and commercial bureau (or the query result of the enterprise credit information publicity system stamped with the official seal of the domestic equity company).
8. Letter of intent for overseas financing.
9. Power of attorney.
10. A copy of the ID card of the authorized person.
11. Letter of commitment from the applicant.
12. Letter of commitment and copy of ID card of shareholders of domestic equity companies to give up participating in overseas financing and return investment.
13. Other supporting documents required by the bank.
Step 4: Set up a WOFE
If it involves the registration of Circular No. 37 related to employee equity incentives, it may be necessary to provide relevant supporting materials for the established VIE structure).
After the establishment of WOFE, it was used to control the domestic operating entities by agreement, and the VIE structure was also initially established.
Huayixin Capital suggests that the registration of Circular No. 37 of the founders or individual shareholders should be carried out before the completion of the registration of WOFE (marked by the issuance of a business license), because Circular No. 37 is mainly for overseas investment and financing and round-trip investment through special purpose vehicles, and if WOFE has been incorporated, it means that the round-trip investment has been completed, and the registration of Circular No. 37 may be recognized as supplementary registration (the approval authority for supplementary registration is mainly with the State Administration of Foreign Exchange), and the process and difficulty will increase accordingly.
If a domestic resident individual makes a capital contribution to a SPV with domestic assets or interests, he or she shall apply to the bank where the assets or interests of the domestic enterprise are located (generally through the commercial bank in the place where the domestic equity (domestic-funded company) is registered) for foreign exchange registration of the domestic resident individual SPV.
If there are multiple domestic enterprises with assets or interests in different locations, the domestic residents should choose the bank where one of the main assets or rights and interests is located for centralized registration. If a domestic resident makes a capital contribution with overseas legal assets or interests, he or she shall apply to the bank where his or her household registration is located for registration.
The time node of the establishment of overseas SPVs and the recognition of domestic rights and interests
Before setting up an offshore SPV, the applicant must ensure that the industrial and commercial registration procedures in China have been completed and that the corresponding legal rights and interests have been obtained.
2. The problem of a large number of domestic registrations
Due to the different policies in different places, there may be certain difficulties and controversies in the registration of Circular 37 with a large number of people. Therefore, it is recommended that you communicate and confirm with your local bank and foreign exchange bureau before registering to ensure a smooth registration process. In addition, you can also hire a professional organization or law firm to provide relevant advice on how to deal with potential problems.
3. Institutional shareholders of domestic equity entities shall apply for ODI registration
In some jurisdictions, there may be disputes over the registration of foreign direct investment (ODI) by institutional shareholders. Therefore, it is advisable to confirm and communicate with the relevant local authorities before developing a plan to ensure that your registration plan can comply with local requirements and policies.
In addition, some banks or SAFES may require the signing of a waiver of registration under Circular 37 for natural persons and institutional shareholders who are not involved in the registration of domestic equity entities. In order to avoid misunderstandings and disputes with the relevant shareholders, it is recommended that you communicate with them in advance and ensure that the relevant documents are signed smoothly.
There are many policy requirements involved in the establishment of overseas SPVs and the registration of Circular 37, so it is recommended that you consult a professional organization. Only by ensuring the compliance and feasibility of each step can the registration and filing process of Circular 37 for overseas listings be successfully completed.
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